French v. Carson City et al

Filing 30

ORDER granting in part and denying in part 16 Motion for Summary Judgment. Signed by Judge Howard D. McKibben on 2/4/15. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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WILLIAM FRENCH,

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Plaintiff,
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vs.
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CARSON CITY, BRIAN MENDOZA, JIMMY )
SURRATT, and DAVE RAMSEY,
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Defendants.
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_________________________________ )

3:13-cv-00209-HDM-WGC
ORDER

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Plaintiff William French (“plaintiff”) filed the instant

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complaint in state court on March 25, 2013, alleging eleven state

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and federal claims against defendants Brian Mendoza (“Mendoza”) and

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Jimmy Surratt (“Surratt”), Dave Ramsey (“Ramsey”), and Carson City

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(collectively “defendants”).

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April 23, 2013, and filed for summary judgment on all of

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plaintiff’s claims on March 26, 2014.

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defendants’ motion (#26), and defendants have replied (#29).

Defendants removed to this court on

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Plaintiff has opposed

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Facts

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The following facts are taken primarily from defendants’

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motion for summary judgment and attached exhibits.

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largely has not taken issue with the facts as presented by

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defendants, except where specifically noted.

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Plaintiff

On August 9, 2011, at around 11:20 p.m., Carson City deputies

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Mendoza and Surratt were separately dispatched to an apartment

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complex in Carson City on reports that a subject was carrying a

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bottle of alcohol and knocking on the doors of people he did not

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know.

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Dep. 5-6); id. Ex. 3).

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plaintiff “having a very loud conversation” with a tenant at the

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tenant’s front door.1

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Plaintiff was wearing what appeared to be women’s panties on his

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head and had a bottle in his hand containing what appeared to be

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clear alcohol.

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exited his vehicle and approached plaintiff, who began walking

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toward the back of the building.

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Dep. 6).

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which plaintiff did.

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(Mot. Summ. J. Ex. 1 (Mendoza Dep. 5); id. Ex. 2 (Surratt
Mendoza arrived first and observed

(Mot. Summ. J. Ex. 1 (Mendoza Dep. 5-6)).

Id. Ex. 1 (Mendoza Dep. at 6); id. Ex. 3.

Mendoza

(Mot. Summ. J. Ex. 1 (Mendoza

Mendoza followed plaintiff and told him to have a seat,
Id. Ex 1 (Mendoza Dep. 5-6); id. Ex. 3.

Mendoza asked plaintiff for his name.

Plaintiff responded

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“Robert French.”

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asked plaintiff why he was in the area, and plaintiff responded

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that he was just trying to get some cigarettes.

(Mot. Summ. J. Ex. 1 (Mendoza Dep. 10)).

Id.

Mendoza

By this time,

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In his police report, Mendoza described it as a “very vocal
conversation.”
(Mot. Summ. J. Ex. 3).
Plaintiff argues that this
description, written closer in time to the events, is inconsistent with
Mendoza’s later recollection during his deposition that the conversation was
“very loud.”

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Mendoza had ascertained that plaintiff was intoxicated.

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Plaintiff submitted to a preliminary breath test, which registered

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a blood alcohol level of .215.

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checked plaintiff for warrants under the name “Robert French,” and

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finding none then began trying to find a way to get plaintiff home.

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Id. at 11.

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Nevada.

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plaintiff provided a phone number for someone who could pick him

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up, but the number was disconnected.

(Mot. Summ. J. Ex. 3).

Id.

Mendoza

Plaintiff told Mendoza that he lived in Douglas,

Id. Ex. 1 (Mendoza Dep. at 10-11).

Id.

At Mendoza’s request,

Plaintiff then asked

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Mendoza to give him a ride to Indian Hills, and Mendoza replied

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that he could not as Indian Hills was in another county.

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11-12.

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stated he did not have any money.

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Id. at

Mendoza offered to get plaintiff a cab, but plaintiff
Id. at 12.

In the meantime, Surratt had arrived on scene, observed

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Mendoza speaking with plaintiff, and proceeded to interview one of

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the apartment tenants.

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id. Ex. 3).

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had told him: that the plaintiff, wearing women’s underwear on his

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head, had knocked on the tenant’s door and tried to sell the tenant

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his bottle of alcohol.

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id. Ex. 2 (Surratt Dep. 6-7, 11); id. Ex. 3).

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(Mot. Summ. J. Ex. 2 (Surratt Dep. 6-7);

Surratt contacted Mendoza and relayed what the tenant

(Mot. Summ. J. Ex. 1 (Mendoza Dep. 12-13);

Mendoza decided to arrest plaintiff for disorderly conduct.

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(Mot. Summ. J. Ex. 1 (Mendoza Dep. 13)).

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decision on: (1) the fact that when he arrived, he heard plaintiff

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yelling profanities at the tenant with whom he’d been speaking; (2)

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what the tenant and the reporting party had said about plaintiff’s

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conduct; and (3) plaintiff’s demeanor and intoxication.

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the decision had been made, Surratt brought out his police canine
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Mendoza based his

Id.

Once

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to “deter resistance.”

(Mot. Summ. J. Ex. 2 (Surratt Dep. 7)).

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Mendoza informed plaintiff he was going to arrest him for

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disorderly conduct and asked him to put his hands behind his back.

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(Mot. Summ. J. Ex. 1 (Mendoza Dep. 14)).

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plaintiff said he wasn’t going to jail and refused to put his hands

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behind his back.2

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Instead, he leaned forward and “kind of clenched his arms together

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in front of him.”

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behind his back, but plaintiff did not release his grip and

From his seated position,

(Mot. Summ. J. Ex. 1 (Mendoza Dep. 14)).

Id.

Mendoza tried to pull plaintiff’s right arm

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resisted Mendoza’s pressure to move his arm.

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Mendoza told plaintiff again to cooperate and put his hands behind

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his back, but plaintiff refused.

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his taser gun, placed it on plaintiff’s back, and told plaintiff

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that if he did not cooperate and put his hands behind his back he

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would be tased.

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continued to try standing up.

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resisting and tried to prevent plaintiff from standing up.

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15-16.

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a contact tase to his back.

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onto his knees.3

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Id. at 15.

Id.; (Mot. Summ. J. Ex. 3).

Id. at 14-15.

Mendoza then removed

Instead, plaintiff

Mendoza told plaintiff to stop
Id. at

When plaintiff attempted to stand up again, Mendoza applied
Id. at 18.

Plaintiff fell forward

Id.; Mot. Summ. J. Ex. 3.

Meanwhile, Surratt had been standing in front of plaintiff

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with his police canine.

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When Surratt observed plaintiff trying to get to his feet in “an

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aggressive manner,” Surratt said he warned that if plaintiff did

(Mot. Summ. J. Ex. 1 (Mendoza Dep. 16)).

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Plaintiff admits that he refused to put his arms behind his back.
(Pl Compl. ¶ 13).
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Plaintiff argues that a reasonable juror could conclude that plaintiff
fell forward from the contact tase and was not, as suggested by the
defendants, being aggressive.

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not stop he would deploy the canine and the canine would bite.

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Ex. 2 (Surratt Dep. 14).

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deployed the canine only after a warning.

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the canine, who bit plaintiff in the buttocks.

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2 (Surratt Dep. 12-13); id. Ex. 1 (Mendoza Dep. 19-20)).

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Id.

Mendoza did not testify that Surratt
Surratt then deployed
(Mot. Summ. J. Ex.

According to Surratt, plaintiff was becoming more “aggressive”

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and “violent.”

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plaintiff tried to get up again, Surratt deployed the canine once

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more; this time, the canine bit plaintiff on the left forearm and

(Mot. Summ. J. Ex. 2 (Surratt Dep. 16-17)).

As

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held.

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Dep. 16)).

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the “few seconds” before Surratt recalled him.

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1 (Mendoza Dep. 20-21); id. Ex. 2 (Surratt Dep. 17)).

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plaintiff was striking the canine, Surratt continued to command

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plaintiff to put his arms behind his back.

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canine released, plaintiff attempted to stand again.

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J. Ex. 1 (Mendoza Dep. 21)).

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plaintiff in the back with a taser dart.

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(Mendoza Dep. 22)).

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him and took him into custody.

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23-24)).

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(Mot. Summ. J. Ex. 1 (Mendoza Dep. 20); id. Ex. 2 (Surratt
Plaintiff began striking the canine several times in
(Mot. Summ. J. Ex.
While

Id. Ex. 3.

After the

(Mot. Summ.

Mendoza responded by shooting
(Mot. Summ. J. Ex. 1

Plaintiff calmed down, and Mendoza handcuffed
(Mot. Summ. J. Ex. 1 (Mendoza Dep.

As alleged in his complaint (and unaddressed by defendants),

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plaintiff’s forearm wound was “akin to a shark bite” with “chunks”

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missing from it.

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rescue, which responded and bandaged plaintiff’s arm.

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J. Ex. 1 (Mendoza Dep. 30); id. Ex. 3).

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plaintiff to the hospital, where the wound was cleaned and x-rayed.

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(Mot. Summ. J. Ex. 1 (Mendoza Dep. 31-32)).

(Pl. Compl. ¶ 16).

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Mendoza called fire and
(Mot. Summ.

Mendoza then transported

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While at the hospital, plaintiff stated that his real name was

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not “Robert French” but was instead “William French”; Robert was in

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fact plaintiff’s brother.

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id. Ex. 3).

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discovered that plaintiff was on probation with a no-alcohol

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clause. (Mot. Summ. J. Ex. 1 (Mendoza Dep. 34)).

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(Mot. Summ. J. Ex. 1 (Mendoza Dep. 34);

Running a report under “William French,” Mendoza

Upon release from the hospital, plaintiff was taken to Carson

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City Jail.

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eventually charged with: (1) mistreatment of a police animal; (2)

(Mot. Summ. J. Ex. 1 (Mendoza Dep. 35)).

He was

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using false information to avoid prosecution; (3) resisting a

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public officer; (4) disorderly conduct; and (5) alternative

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sentencing violation (probation).

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Dep. 37-38); id. Ex. 3).

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providing false information to avoid prosecution, and the remaining

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claims were dismissed.

(Mot. Summ. J. Ex. 1 (Mendoza

In the end, plaintiff pleaded guilty to

(Pl. Compl. ¶ 21).

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While in the Carson City Jail, plaintiff’s forearm wound was

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treated by defendant Ramsey, who did daily dressing changes, kept

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the wound clean, and gave plaintiff antibiotics and pain

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medications as needed.

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Initially, the wound seemed to be healing, but one day Ramsey

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noticed a change for the worse.

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doctor for a second opinion; the doctor advised that while he did

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not quite see what Ramsey saw, plaintiff should be sent for wound

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care at the hospital if Ramsey thought the wound had worsened.

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at 10; Mot. Summ. J. Ex. 5.

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with the Carson Surgical Group on September 13, 2011, and

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thereafter received wound treatment at the hospital two to three

(Mot. Summ. J. Ex. 4 (Ramsey Dep. 8)).

Id. at 9-10.

Ramsey called a

Plaintiff was evaluated by a doctor

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Id.

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times a week.4

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Eventually doctors determined plaintiff needed surgery, which he

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underwent on November 28, 2011, and December 5, 2011.

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J. Exs. 7 & 8).

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(Mot. Summ. J. Ex. 4 (Ramsey Dep. 10); id. Ex. 5).

(Mot. Summ.

Plaintiff filed the instant complaint asserting claims based

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on his arrest and subsequent medical care.

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summary judgment on all claims, both on the merits and, where

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applicable, on grounds of qualified or discretionary immunity.

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Defendants argue the material facts are not in dispute and they are

Defendants move for

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therefore entitled to judgment as a matter of law.

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Standard

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“The court shall grant summary judgment if the movant shows

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that there is no genuine issue as to any material fact and the

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movant is entitled to judgment as a matter of law.”

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P. 56(a).

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issue of material fact lies with the moving party, and for this

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purpose, the material lodged by the moving party must be viewed in

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the light most favorable to the nonmoving party.

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Kress & Co., 398 U.S. 144, 157 (1970); Martinez v. City of Los

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Angeles, 141 F.3d 1373, 1378 (9th Cir. 1998).

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fact is one that affects the outcome of the litigation and requires

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a trial to resolve the differing versions of the truth.

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Sheet Metal Workers Int’l Ass’n, 804 F.2d 1472, 1483 (9th Cir.

Fed. R. Civ.

The burden of demonstrating the absence of a genuine

Adickes v. S.H.

A material issue of

Lynn v.

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Ramsey testified that it was twice a week, but defendants maintain
Carson City Sheriff’s Office records show plaintiff was actually treated
three times a week. (Mot. Summ. J. 7 n.3). Plaintiff suggests that these
records might actually mean that plaintiff was supposed to be treated three
times a week and that Ramsey, who recollected sending plaintiff only twice
a week, may have been deliberately indifferent in failing to adhere to the
prescribed course of treatment.

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1986); S.E.C. v. Seaboard Corp., 677 F.2d 1301, 1306 (9th Cir.

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1982).

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Once the moving party presents evidence that would call for

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judgment as a matter of law at trial if left uncontroverted, the

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respondent must show by specific facts the existence of a genuine

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issue for trial.

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250 (1986).

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sufficient evidence favoring the nonmoving party for a jury to

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return a verdict for that party.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

“[T]here is no issue for trial unless there is

If the evidence is merely

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colorable, or is not significantly probative, summary judgment may

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be granted.”

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of evidence will not do, for a jury is permitted to draw only those

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inferences of which the evidence is reasonably susceptible; it may

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not resort to speculation.”

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F.2d 946, 952 (9th Cir. 1978); see also Daubert v. Merrell Dow

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Pharmaceuticals, Inc., 509 U.S. 579, 596 (1993) (“[I]n the event

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the trial court concludes that the scintilla of evidence presented

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supporting a position is insufficient to allow a reasonable juror

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to conclude that the position more likely than not is true, the

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court remains free . . . to grant summary judgment.”).

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“[i]f the factual context makes the non-moving party’s claim of a

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disputed fact implausible, then that party must come forward with

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more persuasive evidence than otherwise would be necessary to show

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there is a genuine issue for trial.”

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Stanewich, 142 F.3d 1145, 1149 (9th Cir. 1998) (citing Cal.

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Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818

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F.2d 1466, 1468 (9th Cir. 1987)).

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unsupported by factual data cannot defeat a motion for summary

Id. at 249-50 (citations omitted).

“A mere scintilla

British Airways Bd. v. Boeing Co., 585

Moreover,

Blue Ridge Ins. Co. v.

Conclusory allegations that are

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judgment.

Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).

If the nonmoving party fails to present an adequate opposition

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to a summary judgment motion, the court need not search the entire

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record for evidence that demonstrates the existence of a genuine

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issue of fact.

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F.3d 1026, 1029-31 (9th Cir. 2001) (holding that “the district

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court may determine whether there is a genuine issue of fact, on

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summary judgment, based on the papers submitted on the motion and

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such other papers as may be on file and specifically referred to

See Carmen v. San Francisco Unified Sch. Dist., 237

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and facts therein set forth in the motion papers”).

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court need not “scour the record in search of a genuine issue of

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triable fact,” but rather must “rely on the nonmoving party to

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identify with reasonable particularity the evidence that precludes

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summary judgment.”

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1996) (quoting Richards v. Combined Ins. Co., 55 F.3d 247, 251 (7th

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Cir.1995)).

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an opportunity to assist the court in understanding the facts.

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if the nonmoving party fails to discharge that burden–for example

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by remaining silent–its opportunity is waived and its case

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wagered.”

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(6th Cir. 1992).

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Analysis

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The district

Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir.

“[The nonmoving party’s] burden to respond is really
But

Guarino v. Brookfield Twp. Trustees, 980 F.2d 399, 405

Plaintiff’s complaint asserts five federal causes of action

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and six state law causes of action against the defendants: (1)

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Fourth Amendment excessive force against defendants Mendoza and

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Surratt; (2) municipal liability against defendant Carson City for

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allowing indiscriminate use of police canines and tasers where

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lesser force would be effective; (3) Fourteenth Amendment malicious
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prosecution against Mendoza and Surratt; (4) municipal liability

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against Carson City for an alleged policy or custom that resulted

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in malicious prosecutions; (5) false arrest against Mendoza and

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Surratt; (6) state law malicious prosecution against Mendoza and

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Surratt; (7) false imprisonment against Mendoza and Surratt; (8)

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negligent hiring, training, and supervision against Carson City;

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(9) respondeat superior against Carson City; (10) intentional

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infliction of emotional distress against Mendoza and Surratt; and

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(11) Eighth Amendment cruel and unusual punishment and Fourteenth

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Amendment deliberate indifference to medical needs against

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defendant Ramsey, as well as a municipal liability claim against

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Carson City based thereon.

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I.

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Fourth Amendment Excessive Force
Plaintiff asserts a claim of excessive force against Mendoza

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and Surratt based on their combined use of the taser and the police

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canine to effectuate plaintiff’s arrest.

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To prove a violation under § 1983, a plaintiff must establish

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that the defendant (1) acting under color of law (2) deprived

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plaintiff of the rights, privileges, or immunities secured by the

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Constitution or the laws of the United States.

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States, 781 F.2d 1334, 1338 (9th Cir. 1986).

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and defendants do not dispute, that they were acting under the

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color of law.

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violated a constitutional right of the plaintiff.

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claim for relief, plaintiff asserts that by employing excessive

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force in his arrest, Mendoza and Surratt violated his Fourth

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Amendment right to be free of unreasonable search and seizure.

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Gibson v. United
Plaintiff alleges,

The issue is therefore whether the defendants
In this first

A claim that officers have used excessive force in the course
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of seizing a person is analyzed under the Fourth Amendment’s

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objective reasonableness standard.

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381 (2007) (citing Graham v. Connor, 490 U.S. 386, 388 (1989)).

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The test is “whether the officers’ actions are ‘objectively

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reasonable’ in light of the facts and circumstances confronting

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them, without regard to their underlying intent or motivation.”

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Hooper v. County of San Diego, 629 F.3d 1127, 1133 (9th Cir. 2011).

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To determine if a Fourth Amendment violation has occurred, the

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court first assesses the gravity of the intrusion by evaluating the

Scott v. Harris, 550 U.S. 372,

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type and amount of force inflicted.

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F.3d 959, 964 (9th Cir. 2003).

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of the intrusion on the individual’s Fourth Amendment rights

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against the government’s interests” in order “to determine whether

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the officer’s conduct was objectively reasonable based on the

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totality of the circumstances.”

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Francisco, 598 F.3d 528, 537 (9th Cir. 2010).

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Miller v. Clark County, 340

The court then balances “the extent

Espinosa v. City & County of San

The reasonableness of a particular use of force must be
judged from the perspective of a reasonable officer on
the scene, rather than with the 20/20 vision of
hindsight.• To do so, a court must pay careful attention
to the facts and circumstances of each particular case,
including [1] the severity of the crime at issue, [2]
whether the suspect poses an immediate threat to the
safety of the officers or others, and [3] whether he is
actively resisting arrest or attempting to evade arrest
by flight.• We also consider, under the totality of the
circumstances, the quantum of force used, the
availability of less severe alternatives, and the
suspect’s mental and emotional state. All determinations
of unreasonable force, however, must embody allowance for
the fact that police officers are often forced to make
split-second judgments—in circumstances that are tense,
uncertain, and rapidly evolving—about the amount of force
that is necessary in a particular situation.

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Hayes v. County of San Diego, 736 F.3d 1223, 1232 (9th Cir. 2013)
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(internal punctuation and citations omitted).
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Plaintiff argues in opposition to summary judgment that the

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deputies lacked probable cause to arrest him for disturbing the

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peace and therefore the arrest was unlawful, the resulting use of

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force and detention were unreasonable, and plaintiff was justified

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in his actions.

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law officers may arrest for a misdemeanor only where it is

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committed in their presence, Nev. Rev. Stat. § 171.124, that

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disturbing the peace is a misdemeanor, and that what Mendoza

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observed of plaintiff’s behavior did not amount to disturbing the

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Specifically, plaintiff argues that under Nevada

peace.

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Under the Carson City Municipal Code, it is disorderly conduct

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“for any person to . . . disturb the peace and quiet of any person,

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family or neighborhood by loud, violent or offensive language, or

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by boisterous, tumultuous or offensive conduct . . . .”

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City Mun. Code § 8.04.010.

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tenant while wearing underwear on his head and carrying and trying

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to sell a bottle of alcohol does not meet this definition because

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it is not loud or offensive language nor boisterous or offensive

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conduct.

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post hoc description of the discussion as “loud” creates an issue

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of fact where Mendoza initially described the conversation as only

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“vocal” in his report.

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Carson

Plaintiff asserts that talking to a

In particular, plaintiff appears to assert that Mendoza’s

Plaintiff’s argument in this respect is unpersuasive.

Already

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aware that a man had been knocking on tenants’ doors late at night

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while carrying a bottle of alcohol, Mendoza arrived on scene and

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personally observed plaintiff, wearing what appeared to be women’s

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underpants on his head and carrying a bottle of liquor, talking at

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least “vocally” to, and yelling profanities at, a tenant.5

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nearly midnight.

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have therefore been clear to a reasonable officer that plaintiff

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was disturbing the peace and quiet of the apartment tenants with

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either “loud . . . or offensive language” or “boisterous . . . or

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offensive conduct.”

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plaintiff for the offense of disorderly conduct.

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It was

In the context of the tenants’ reports, it would

Mendoza was thus authorized to arrest

Plaintiff’s second argument is that even if the deputies had
probable cause, the force they used to arrest him was unreasonable.

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He argues that none of his conduct justified the escalation of

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force the deputies applied because he was seated on the ground and

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“highly intoxicated,” suggesting, it appears, that he was in no

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position to take action that could harm the deputies.

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also argues that a reasonable juror could conclude his movement

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upon being tased was an involuntary physical response to the tase

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and not a move of aggression or flight.

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have been nearly impossible with two officers and a police canine

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surrounding him.

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and therefore a reasonable juror could conclude that his attempts

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to get up were not attempts to get on his feet but instead were

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attempts to get on his knees so he could be handcuffed.

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argues that the crime for which he was being arrested was not a

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serious crime and involved no violence.

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that the officers could have used much less force, including no

Plaintiff

He argues escape would

Plaintiff also argues that he was on all fours,

Plaintiff

Finally, plaintiff argues

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The court is not persuaded by plaintiff’s argument that Mendoza
changed his story from the time of his report to the time of his deposition
in order to manufacture probable cause. A description of the conversation
as loud is not materially different from a description of the conversation
as “vocal.” Plaintiff has not taken issue with Mendoza’s testimony that
plaintiff had also been yelling profanities.

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force at all by simply issuing a citation and notice to appear.

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Defendants assert that their escalating use of force was

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necessary and reasonable under the circumstances because plaintiff

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was actively and aggressively resisting arrest, including

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repeatedly striking the police canine.

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because plaintiff was not compliantly yielding or physically

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subdued and was aggressive they had the right to use intermediate

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force, citing Miller v. Clark County, 340 F.3d 959 (9th Cir. 2003).

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In addition, defendants argue that there is no evidence that they

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encouraged the canine to bite more forcefully or for longer than it

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would have otherwise done, and that plaintiff’s substantial forearm

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wound is most logically the result of his own resistance to arrest

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and battering of the canine and not of any provocation of the

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canine’s bite by the defendants.

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citation and notice to appear was not reasonable under the

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circumstances given plaintiff’s highly intoxicated state and the

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fact there was no way to remove him from the area – where he was

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disturbing the peace – absent arrest.

Defendants assert that

Finally, defendants assert that a

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A question of fact exists as to the degree to which plaintiff

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resisted arrest, even under the defendants’ version of the events.

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A jury could conclude the plaintiff’s conduct was in fact

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relatively mild and perhaps even passive rather than threatening.

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That, combined with the relatively minor offense for which

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plaintiff was being arrested – disorderly conduct – creates an

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issue for the trier of fact as to whether the officers’ response to

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plaintiff’s resistance was objectively reasonable.6

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judgment must therefore be DENIED as to plaintiff’s excessive force

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claim against Mendoza and Surratt.

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II.

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Summary

Municipal Liability Related to Excessive Force
Plaintiff asserts a claim of municipal liability against

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defendant Carson City based on an alleged policy and custom of

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allowing indiscriminate use of tasers and canines when lesser force

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would be effective.

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A municipality may be held liable only where it inflicts an

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injury; it may not be held liable under a respondeat superior

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theory.

12

U.S. 658, 691 (1978); Gibson v. County of Washoe, 290 F.3d 1175,

13

1185 (9th Cir. 2002).

14

inflicted pursuant to its own policies, regulations, customs, or

15

usage.

16

order for the municipality to be held liable, “there must be a

17

direct causal link between a municipal policy or custom and the

18

alleged constitutional deprivation.”

19

Festival Ass’n, 541 F.3d 950, 957 (9th Cir. 2008) (internal

20

quotation marks omitted).

Monell v. Dep’t of Social Servs. of City of New York, 436

A municipality may be liable for injuries

Chew v. Gates, 27 F.3d 1432, 1444 (9th Cir. 1994).

In

Villegas v. Gilroy Garlic

21
22
23
24
25
26
27
28

6

Defendants’ reliance on Miller is insufficiently persuasive at this
stage of the proceedings. First, the facts of Miller differ in several
material respects from this case. Specifically, in Miller there was some
indication the plaintiff could be armed and the plaintiff had actually fled
from the officers and was in an area that the plaintiff knew well but the
officers did not.
There is no evidence currently before the court
suggesting that the plaintiff in this case could have been armed, nor had
he fled. The court is therefore not convinced that plaintiff could have
“generat[ed] surprise, aggression, and death,” id. at 965, in the same way
as the plaintiff in Miller. Further, the court would note that Miller was
decided after a trial, not on summary judgment. Accordingly, the court
there had before it all the relevant facts and was able to resolve disputed
issues of material fact, which at this stage the court cannot do.

15

1

The complaint alleges that Carson City has “approved of the

2

indiscriminate use of K-9's and tasers to obtain compliance where

3

lesser forms of force would accomplish the same objectives. . . .”

4

(Pl. Compl. ¶ 29).

5

“routinely” use canines in passive situations and therefore there

6

is a practice of “employing attack canines on arrestees, regardless

7

of any threat assessment.”

8

this assertion is the deposition testimony of Surratt, who when

9

asked whether he brings out his canine as standard procedure,

Plaintiff asserts that Carson City deputies

The only evidence plaintiff cites for

10

stated “I bring my canine out a lot to deter resistance, yes.”

11

(Mot. Summ. J. Ex. 2 (Surratt Dep. 7:14-15)).

12

only insufficient to establish a policy, as Surratt testified only

13

that he routinely brings out canines to deter resistance, but it is

14

also insufficient to establish that the canines are actually used

15

to bite passive arrestees, as Surratt testifies only that he

16

routinely brings out the canine to deter resistance.

17

plaintiff has failed to present triable issues of fact that would

18

support a municipal liability claim against Carson City based on a

19

custom, policy, or practice of employing excessive force through

20

indiscriminate use of police canines and tasers.

21

will therefore be granted on this claim.7

22

III. Fourteenth Amendment Malicious Prosecution

23
24
25

This evidence is not

Accordingly,

Summary judgment

Plaintiff asserts a claim of malicious prosecution under §
1983 against defendants Mendoza and Surratt.
“In order to prevail on a § 1983 claim of malicious

26
27
28

7

In his opposition, plaintiff also argues the City was deliberately
indifferent because canines are trained to not let go until commanded to do
so. However, no such claim is included in the plaintiff’s complaint.

16

1

prosecution, a plaintiff must show that the defendants prosecuted

2

him with malice and without probable cause, and that they did so

3

for the purpose of denying him equal protection or another specific

4

constitutional right.”

5

1066 (9th Cir. 2004) (internal punctuation omitted); see also Haupt

6

v. Dillard, 17 F.3d 285, 290 (9th Cir. 1994).

Awabdy v. City of Adelanto, 368 F.3d 1062,

“[P]robable cause is an absolute defense to malicious

7
8

prosecution.”

Lassiter v. City of Bremerton, 556 F.3d 1049, 1054-

9

55 (9th Cir. 2009).

“Probable cause to arrest exists when officers

10

have knowledge or reasonably trustworthy information sufficient to

11

lead a person of reasonable caution to believe that an offense has

12

been or is being committed by the person being arrested.”

13

Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011).

Fayer v.

14

As already noted, plaintiff was charged with five crimes: (1)

15

disorderly conduct; (2) mistreatment of a police animal; (3) using

16

false information to avoid prosecution; (4) resisting a public

17

officer; and (5) alternative sentencing violation (probation).

18

is not clear whether plaintiff bases his claim on all five counts,

19

but the court will address each in turn.

It

Disorderly conduct occurs when a person “disturb[s] the peace

20
21

and quiet of any person, family or neighborhood by loud, violent or

22

offensive language, or by boisterous, tumultuous or offensive

23

conduct . . . .”

24

reportedly knocking on people’s homes at 11:20 p.m., carrying and

25

trying to sell a bottle of liquor, and wearing underwear on his

26

head.

27

having a loud conversation with a tenant and yelling profanities.

28

To a person of reasonable caution, plaintiff’s summoning of the

Carson City Mun. Code § 8.04.010.

Plaintiff was

Mendoza observed plaintiff, with the underwear on his head,

17

1

apartment tenants to their doors shortly before midnight for the

2

purpose of selling them his open bottle of alcohol, and his

3

engaging of the tenants in vocal or loud conversations that

4

included the yelling of profanities, was upsetting the peace and

5

quiet of the apartment tenants.

6

probable cause to arrest and charge plaintiff with disorderly

7

conduct.
Under Nev. Rev. Stat. Ann. § 574.105(a), it is unlawful for a

8
9

The officers therefore had

person to “willfully and maliciously . . . beat [or] strike . . . a

10

police animal.”

Here, the deputies observed plaintiff striking the

11

police canine on the head repeatedly, a fact plaintiff does not

12

deny.

13

“instictive self-defense” in response to an unlawful arrest, the

14

court has already held that the arrest was lawful.

15

plaintiff’s striking of the canine during the arrest, probable

16

cause existed to charge plaintiff with mistreatment of a police

17

animal.

Although plaintiff asserts the violence was an act of

Given

18

Under Nev. Rev. Stat. Ann. § 205.463(2), “a person who

19

knowingly (a) [o]btains any personal identifying information of

20

another person; and (b) [u]ses the personal identifying information

21

to avoid or delay being prosecuted for an unlawful act, is guilty

22

of a category C felony. . . .”

23

used his brother’s name to avoid detection for a probation

24

violation, and in fact plaintiff pleaded guilty to that charge.

25

Accordingly, no claim of malicious prosecution can be based on this

Plaintiff does not deny that he

26
27
28
18

1
2

charge.8
Under Nev. Rev. Stat. Ann. § 199.280(3), a “person who, in any

3

case or under any circumstances not otherwise specially provided

4

for, willfully resists, delays or obstructs a public officer in

5

discharging or attempting to discharge any legal duty of his or her

6

office shall be punished . . . [w]here no dangerous weapon is used

7

in the course of such resistance, obstruction or delay, for a

8

misdemeanor.”

9

that plaintiff refused to place his arms behind his back to be

At a minimum, an undisputed fact of this case is

10

handcuffed despite being ordered to do so.

11

deputies had probable cause to charge plaintiff with resisting a

12

public officer.

13

Accordingly, the

Finally, plaintiff does not dispute that he was on probation

14

at the time of this incident, that one of his conditions of

15

probation was to abstain from alcohol, and that he was found by the

16

deputies to be intoxicated.

17

to charge plaintiff with a violation of his probation.

18

Accordingly, there was probable cause

In sum, the court finds no issue of material fact as to

19

whether there was probable cause to charge plaintiff with all five

20

offenses.

21

deputies maliciously charged him for the purpose of denying him a

22

constitutional right.

Moreover, plaintiff has presented no evidence that the

Plaintiff’s only argument on this point is

23
24
25
26
27
28

8

Plaintiff’s argument based on Carey v. Nevada Gaming Control Bd., 279
F.3d 873 (9th Cir. 2002) is not only irrelevant given his guilty plea to
this charge but also misplaced. Unlike in Carey, where the plaintiff was
arrested for refusing to provide identifying information and the Ninth
Circuit held the statute criminalizing such was unconstitutional, here the
plaintiff had already been arrested and was later charged because he had
represented himself as someone else in order to avoid detection for a
probation violation. Carey says nothing about the constitutionality of the
statute under which plaintiff was charged in this case.

19

1

that malice can be inferred from a lack of probable cause.

The

2

court has rejected this argument.

3

shown no genuine issue of material fact with respect to his § 1983

4

malicious prosecution claim, defendants are entitled to summary

5

judgment on this claim.

6

IV.

Accordingly, as plaintiff has

Municipal Liability Related to Malicious Prosecution

7

Plaintiff asserts a municipal liability claim against

8

defendant Carson City based on an alleged policy and custom of

9

allowing malicious prosecution.
There is no evidence in the record to substantiate this claim.

10
11

Moreover, plaintiff has not shown that he suffered a violation of

12

his right against malicious prosecution; therefore the city cannot

13

be liable for causing a violation of said right.

14

Angeles v. Heller, 475 U.S. 796, 799 (1986) (per curiam).

15

Accordingly, Carson City is entitled to summary judgment on this

16

claim.

17

V.

18
19
20

See City of Los

False Arrest
Plaintiff asserts a claim of false arrest against defendants

Mendoza and Surratt.
“In order to prove false arrest, a plaintiff must show the

21

defendant instigated or effected an unlawful arrest.”

Nau v.

22

Sellman, 757 P.2d 358, 360 (Nev. 1988).

23

discussed, the court holds as a matter of law that plaintiff’s

24

arrest was not unlawful as there was probable cause to arrest him

25

for disorderly conduct.

26

summary judgment on this claim.

For the reasons already

Defendants are therefore entitled to

27
28
20

1
2
3
4

VI.

State Law Malicious Prosecution
Plaintiff asserts a claim of malicious prosecution under state

law against defendants Mendoza and Surratt.
“[T]he elements of a malicious prosecution claim are: (1) want

5

of probable cause to initiate the prior criminal proceeding; (2)

6

malice; (3) termination of the prior criminal proceedings; and (4)

7

damage.”

8

LaMantia v. Redisi, 38 P.3d 877, 879 (Nev. 2002).

As discussed, probable cause existed to charge plaintiff with

9

the five offenses.

10

malicious intent.

11

judgment on this claim.

12

VII. False Imprisonment

13

Further, plaintiff has presented no evidence of
Defendants are therefore entitled to summary

Plaintiff asserts a claim of false imprisonment against

14

defendants Mendoza and Surratt.

15

is an unlawful violation of the personal liberty of another, and

16

consists in confinement or detention without sufficient legal

17

authority.”

18

defense to false imprisonment.

19

P.2d 1141, 1144 (Nev. 1983).

20

In Nevada, “[f]alse imprisonment

Nev. Rev. Stat. § 200.460.

Probable cause is a

Nelson v. City of Las Vegas, 665

As probable cause existed to arrest plaintiff and to charge

21

him with the five offenses, plaintiff cannot prove a claim of false

22

imprisonment.

23

claim.

24

VIII. Negligent Hiring, Training, and Supervision

25

Defendants are entitled to summary judgment on this

Plaintiff asserts a claim of negligent hiring, training, and

26

supervision against Carson City based on Mendoza, Surratt, and

27

Ramsey’s alleged unlawful acts.

28

Negligent hiring imposes a general duty on employers to ensure
21

1

that employees are fit for their positions.

Burnett v. C.B.A.

2

Security Serv., Inc., 820 P.2d 750, 752 (Nev. 1991).

3

breaches this duty when it hires an employee even though the

4

employer knew, or should have known, of that employee’s dangerous

5

propensities.” Hall v. SSF, Inc., 930 P.2d 94, 98 (Nev. 1996).

6

Plaintiff’s opposition points to no evidence that Carson City was

7

negligent in hiring Mendoza, Surratt, or Ramsey.

8

therefore entitled to summary judgment on the claim of negligent

9

hiring.

“An employer

Defendants are

10

An employer also has a duty to use reasonable care in

11

training, supervising, and retaining its employees to make sure

12

that the employees are fit for their positions.

13

99.

14

inadequately trained its officers and canines, allowed officers to

15

use canines on every arrest, and allowed canines to lock and hold.

16

Plaintiff also argues that Carson City was negligent “as to the

17

City jail’s recordkeeping.”

18

Hall, 930 P.2d at

Plaintiff argues that Carson City was negligent because it

Plaintiff does not elaborate on how the city jail’s

19

recordkeeping was deficient.

His argument that documents exist

20

showing he should have been treated three times a week does not

21

establish a triable issue of fact on this claim.

22

plaintiff has not shown that any such deficiencies caused him any

23

harm, as he received treatment for his wound that eventually healed

24

his wound.

25

on this aspect of plaintiff’s claim.

At any rate,

Therefore Carson City is entitled to summary judgment

26

There is no evidence that Carson City trains deputies to

27

deploy canines on “every arrest” or that officers are inadequately

28

trained with respect to deploying canines.
22

Accordingly summary

1

judgment will be granted as to that part of plaintiff’s claim.
Finally, although Carson City does not appear to dispute that

2
3

it trains its canines to “bite and hold,” no such claim is included

4

in plaintiff’s complaint.

5

IX.

Respondeat Superior
Plaintiff asserts a claim of respondeat superior against

6
7

Carson City based on Mendoza and Surratt’s alleged intentional

8

torts because their conduct was foreseeable and authorized and

9

affirmatively ratified after the fact.

10

An employer is liable under a respondeat superior theory for

11

acts committed by its employee if those acts are committed within

12

the course and scope of the employment duties.

13

Harbor Budget Suites, 925 P.2d 1175, 1179 (Nev. 1996) (“[A]n

14

actionable claim on a theory of respondeat superior requires proof

15

that (1) the actor at issue was an employee, and (2) the action

16

complained of occurred within the scope of the actor's

17

employment.”).

See Rockwell v. Sun

Because, as has been and will be discussed, plaintiff has not

18
19

shown any actionable state law claim underlying a respondeat

20

superior claim, the respondeat superior claim fails.

21

is entitled to summary judgment on this claim.

22

X.

23
24
25

Carson City

Intentional Infliction of Emotional Distress
Plaintiff asserts a claim of intentional infliction of

emotional distress against defendants Mendoza and Surratt.
The elements of an IIED claim are: (1) extreme and outrageous

26

conduct with either the intention of, or reckless disregard for,

27

causing emotional distress; (2) the plaintiff suffered severe or

28

extreme emotional distress; and (3) actual or proximate causation.
23

1

Dillard Dep’t Stores, Inc. v. Beckwith, 115 Nev. 372, 989 P.2d 882,

2

886 (Nev. 1999).

3

possible bounds of decency [and be] atrocious and utterly

4

intolerable.”

5

Supp. 1393, 1401 (D. Nev. 1995).

The defendant’s actions must “go beyond all

Hirschhorn v. Sizzler Rests. Int’l, Inc., 913 F.

6

Defendants assert that there is no evidence that Mendoza or

7

Surratt engaged in extreme or outrageous conduct, and that their

8

use of the canine and the taser was reasonable and justified under

9

the circumstances.

Defendants also argue that plaintiff has

10

proffered no evidence that the defendants acted with the intention

11

to cause harm or with reckless disregard for causing plaintiff

12

emotional distress.

13

plaintiff suffered any extreme or severe emotional distress.

Finally, defendants argue there is no evidence

Plaintiff contends that because he was battered and assaulted,

14
15

this claim should be allowed to proceed pursuant to Olivero v.

16

Lowe, 995 P.2d 1023, 1026-27 (Nev. 2000).

17

proffered no evidence – and has made no argument – that he suffered

18

severe or extreme emotional distress as a result of Mendoza’s and

19

Surratt’s actions.

20

genuine issue of material fact on one of the essential elements of

21

this claim.

22

on this claim.

23

XI.

However, plaintiff has

Accordingly, plaintiff has failed to show a

Defendants are therefore entitled to summary judgment

Eighth Amendment Cruel and Unusual Punishment/Fourteenth

24

Amendment Deliberate Indifference to Serious Medical Needs

25

Plaintiff asserts a claim of deliberate indifference against

26

defendant Ramsey, as well as a derivative municipal liability claim

27
28
24

1
2

based on this conduct.9
Under the Eighth Amendment, prison officials must take

3

reasonable measures to guarantee inmate safety, which includes

4

addressing serious medical needs.

5

825, 833 (1994); Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir.

6

1982), abrogated on other grounds by Sandin v. O’Connor, 515 U.S.

7

472 (1995).

8

arise under the Fourteenth Amendment Due Process Clause.

9

v. Wolfish, 441 U.S. 520, 535 n.16 (1979).

See Farmer v. Brennan, 511 U.S.

Because plaintiff was a pre-trial detainee, his claims
See Bell

However, because the

10

rights under both the Eight and the Fourteenth Amendments are

11

comparable, the Ninth Circuit applies the same standards to both

12

claims.

13

Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998).

To state a claim under the Eighth and Fourteenth Amendments,

14

plaintiff must show (1) an objectively, sufficiently serious

15

deprivation; (2) that the individual defendants were “deliberately

16

indifferent” to plaintiff’s health and safety – that is, they must

17

have had a “sufficiently culpable state of mind,” see Farmer, 511

18

U.S. at 834; Est. of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1049

19

(9th Cir. 2002); and (3) harm caused by the indifference.

20

v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).

See Jett

21
22
23
24
25
26
27
28

9

Although the factual allegations of plaintiff’s complaint also assert
that Mendoza and Surratt were deliberately indifferent to plaintiff’s
medical needs, including by refusing to allow him to be transported to the
hospital in the ambulance, Count 11 discusses only Ramsey’s and Carson
City’s alleged deficiencies. Nor does plaintiff argue in his opposition
that Mendoza and Surratt were deliberately indifferent. However, even if
plaintiff were raising such a claim, the undisputed facts are that Mendoza
and Surratt immediately summoned fire and rescue, who bandaged plaintiff’s
wound, and then took plaintiff to the hospital. Such conduct was not, as
a matter of law, deliberately indifferent to plaintiff’s medical needs.
Further, the evidence does not support any claim that the officers refused
to allow plaintiff to be transported in the ambulance, but even if they did,
there is no evidence such caused plaintiff further harm.

25

1

A prison official is deliberately indifferent to an inmate’s

2

serious medical needs where he or she “knows of and disregards an

3

excessive risk to inmate safety.”

4

defendants must both (1) be aware of facts from which the inference

5

could be drawn that a substantial risk of serious harm exists, and

6

(2) they must also draw the inference.

7

F.3d 1051, 1057 (9th Cir. 2004).

8

a prison official acted or failed to act believing that harm

9

actually would befall an inmate; it is enough that the official

Farmer, 511 U.S. at 837.

The

Id.; Toguchi v. Chung, 391

The plaintiff “need not show that

10

acted or failed to act despite his knowledge of a substantial risk

11

of serious harm.”

12

insufficient to establish deliberate indifference.

13

Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980).

Farmer, 511 U.S. at 842.

Mere negligence is
Broughton v.

14

When the Eighth Amendment deprivation is a failure to treat a

15

serious medical need, deliberate indifference requires showing (a)

16

a purposeful act or failure to respond to a prisoner’s pain or

17

possible medical need; and (b) harm caused by the indifference. See

18

Jett, 439 F.3d at 1096.

19

require a de minimis physical injury to sustain an Eighth Amendment

20

claim, Oliver v. Keller, 289 F.3d 623, 628 (9th Cir. 2002), a delay

21

in medical treatment is a sustainable claim only if a resulting

22

harm is shown.

23

1994).

24

Although the Ninth Circuit does not

See Berry v. Bunnell, 39 F.3d 1056, 1057 (9th Cir.

Plaintiff asserts that defendant Ramsey was deliberately

25

indifferent to his serious medical needs in the way he treated

26

plaintiff’s arm wound.

27

treatment may not have been proper because Ramsey testified that

28

plaintiff was sent to wound care twice a week but Carson City

First, plaintiff suggests that Ramsey’s

26

1

Sheriff’s Office records indicate plaintiff should have been sent

2

three times a week.

3

that Carson City records show he should have been sent three times

4

a week for treatment but was actually sent only twice a week.

5

records are not even before the court and were merely referenced in

6

a footnote to defendants’ motion for summary judgment for the

7

opposite conclusion: that the records show plaintiff was

8

actually treated three times a week at wound care.

9

J. 7 n.3).

Plaintiff offers no support for his argument

The

(See Mot. Summ.

Accordingly, the mere speculation and conjecture of the

10

plaintiff that perhaps he was not treated as often as he should

11

have been cannot establish any genuine issue of material fact that

12

Ramsey was deliberately indifferent to his medical needs.
Second, plaintiff argues Ramsey may not be credible because

13
14

while he claimed the wound was healing, the hospital found it was

15

not.

16

Ramsey believed the wound was healing until one day it was not, and

17

it was only at this point that plaintiff was sent to the hospital

18

for further care.

19

healing at a time Ramsey also thought the wound looked worse does

20

not impugn Ramsey’s credibility.

21

discrepancy also does not create a genuine issue of material fact

22

on this claim.

(See Pl. Opp’n 6).

However, the undisputed evidence is that

That the wound clinic found the wound was not

Accordingly, this alleged

23

The undisputed facts establish that plaintiff received a

24

significant amount of medical treatment for his wound from Ramsey,

25

including daily dressing changes, cleaning of the wound, and

26

administration of antibiotics and pain medication.

27

undisputed that the wound appeared to be healing, and when it

28

appeared to Ramsey it no longer was, he asked for a second opinion
27

It is

1

and then referred plaintiff for wound care at the hospital.

2

court concludes there are no issues of material fact on which the

3

trier of fact could conclude that Ramsey’s treatment of plaintiff’s

4

wound was deliberately indifferent.

5

The

As to plaintiff’s municipal liability claim against Carson

6

City, plaintiff points to no evidence showing Carson City

7

“repeated[ly] den[ies] adequate care.”10 (Compl. ¶ 50).

8

there is no underlying violation there cannot be a Monell claim

9

based thereon.

10
11

Further, as

See City of Los Angeles v. Heller, 475 U.S. 796,

799 (1986) (per curiam).
Accordingly, defendants are entitled to summary judgment on

12

plaintiff’s deliberate indifference claim.

13

XII. Qualified Immunity

14

Defendants Mendoza, Surratt, and Ramsey assert they are

15

entitled to qualified immunity on all of plaintiff’s federal claims

16

against them.

17

violation with respect to the malicious prosecution and deliberate

18

indifference claims, the court need not consider whether qualified

19

immunity applies with respect to those claims.

20

however, address Mendoza and Surratt’s claim of qualified immunity

21

with respect to plaintiff’s excessive force claim.

22

Because the court has found no constitutional

The court must,

Qualified immunity protects “government officials performing

23

discretionary functions . . . from liability for civil damages

24

insofar as their conduct does not violate clearly established

25

statutory or constitutional rights of which a reasonable person

26
27
28

10

The complaint also alleges that various unknown individuals ignored
plaintiff’s repeated kites for medical care, but plaintiff has not
identified any such individuals and has not explained what treatment he
requested in his kites that he did not receive.

28

1

would have known.”

2

“The qualified immunity question turns on the ‘objective legal

3

reasonableness’ of the action.”

4

Nash-Holmes, 169 F.3d 636, 642 (9th Cir. 1999).

5

established, the law “must be established at more than an abstract

6

level; it must have been clearly established in a more

7

particularized, and hence more relevant, sense: The contours of the

8

right must be sufficiently clear that a reasonable officer would

9

understand that what he is doing violates that right.”

10
11

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

Herb Hallman Chevrolet, Inc. v.
To be clearly

Cruz v.

Kauai County, 279 F.3d 1064, 1069 (9th Cir. 2002).
To address assertions of qualified immunity at summary

12

judgment, the court employs a two-pronged inquiry.

13

“asks whether the facts, taken in the light most favorable to the

14

party asserting the injury, show the officer’s conduct violated a

15

federal right.”

16

(2014) (internal punctuation omitted).

17

whether the right in question was ‘clearly established’ at the time

18

of the violation.”

19

genuine disputes of fact in favor of the party seeking summary

20

judgment” under either prong.

21

The first prong

Tolan v. Cotton, – U.S. –, 134 S. Ct. 1861, 1865

Id. at 1866.

The second prong “asks

The court “may not resolve

Id.

As discussed above, considering the evidence in the light most

22

favorable to plaintiff, a genuine issue of material fact exists as

23

to whether Mendoza’s and Surratt’s actions violated plaintiff’s

24

right to be free of excessive force.

25

resolved at summary judgment.

26

under clearly established law, it would have been clear to the

27

defendants that their actions violated that right.

28

The question cannot be

The next question, then, is whether,

At the time of this incident, “[t]he right to be free from the
29

1

application of non-trivial force for engaging in mere passive

2

resistance was clearly established.”

3

728 F.3d 1086, 1092 (9th Cir. 2013), cert. denied, 134 S. Ct. 1292

4

(2014).

5

some force, [ ] the level of force an individual’s resistance will

6

support is dependent on the factual circumstances underlying that

7

resistance.”

8

805, 830 (9th Cir. 2010).

9

the use of a taser dart was an intermediate level of force that

Gravelet-Blondin v. Shelton,

“While ‘purely passive resistance can support the use of

Id. at 1091, quoting Bryan v. MacPherson, 630 F.3d
It was further clearly established that

10

must be justified by a strong governmental interest.

11

630 F.3d 805.

12

certain circumstances employing a police canine may result in

13

excessive force.

14

1093 (9th Cir. 1998); Mendoza v. Block, 27 F.3d 1357, 1362 (9th

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Cir. 1994) (“[W]hen ‘the defendants’ conduct is so patently

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violative of the constitutional right that reasonable officials

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would know without guidance from the courts’ that the action was

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unconstitutional, closely analogous pre-existing case law is not

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required to show that the law is clearly established.”).

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See Bryan,

Finally, it was clearly established that under

See Watkins v. City of Oakland, 145 F.3d 1087,

The question of whether the officers’ conduct in this case

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violated clearly established law turns on the objective

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reasonableness of the defendants’ conduct.

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a light most favorable to plaintiff, as the court must on summary

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judgment, the facts are as follows.

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plaintiff for a misdemeanor, nonviolent crime was made only after

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it was determined there was no way to provide plaintiff a way home.

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Plaintiff was extremely intoxicated, he had made no aggressive

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moves or threats toward the officers, and he did not appear to be
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Viewing the evidence in

The decision to arrest

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armed, nor did the defendants indicate they believed he was armed.

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Plaintiff made no attempt to hide or escape.

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cooperative.

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arrested, and before any perceived act of resistance by plaintiff,

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Surratt brought out the police canine.

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he was going to jail, plaintiff – who was sitting on the ground –

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refused to put his arms behind his back and locked his arms in

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front of him to resist Mendoza’s efforts to pull his arms back for

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handcuffing.

He appeared to be

Before informing plaintiff that he was going to be

When Mendoza told plaintiff

After Mendoza warned plaintiff that if he continued

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“to resist” he would be tasered, and plaintiff then tried to stand,

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Mendoza applied the taser and plaintiff lunged forward onto his

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knees in reaction to the taser.

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Surratt deployed the police canine, which bit plaintiff in the

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buttocks.11

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Surratt then deployed the canine again, and this time the canine

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held its bite on plaintiff’s forearm for several seconds, causing a

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severe puncture wound.

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bit into his arm to dislodge the canine.

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was recalled and as plaintiff tried to stand again, Mendoza,

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without any additional warning, applied the taser dart.

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was immmobilized, and the handcuffs were applied.

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was transported to first the hospital and then jail.

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of the dog bite, plaintiff was treated for the wound to his forearm

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for about four months and ultimately had two surgeries to repair

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the wound.

According to Mendoza, that is when

Plaintiff fought off the dog and tried to stand;

Plaintiff repeatedly hit the canine as it
Finally, after the canine

Plaintiff

Thereafter, he
As a result

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Although Surratt testified at deposition that he gave plaintiff a
warning prior to deploying the canine, Mendoza did not state in his
deposition that such a warning was given.

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Although Surratt has described plaintiff as “angry” and his

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2

behavior as “aggressive” and increasingly violent, he points to no

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objective facts to substantiate these conclusory statements.

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simple statement by an officer that he fears for his safety or the

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safety of others is not enough; there must be objective factors to

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justify such a concern.”

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quoting Deorle v. Rutherford, 272 F.3d 1272, 1281 (9th Cir. 2001).

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The objective facts of this case – that plaintiff refused to put

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his arms behind his back, tried to stand up, and hit the police

“A

Gravelet-Blondin, 728 F.3d at 1091,

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canine as it bit into his arm – at a minimum raise issues of fact

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as to whether plaintiff was aggressive and violent or whether such

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conduct constituted passive resistance and did not justify two

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attacks by the canine, and the application of a contact tase and a

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taser dart.

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force used by the officers under the facts of this case was

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excessive and violated plaintiff’s constitutional rights.

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XIII. Discretionary Immunity

It is for the trier of fact to determine whether the

Defendants assert they are entitled to discretionary immunity

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19

as to plaintiff’s state law claims.

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finds no triable issue of fact on any of plaintiff’s state law

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claims, it is unnecessary to decide whether and to what extent the

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defendants might be immune under Nev. Rev. Stat. § 41.032(2) for

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their actions in this case.

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/

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/

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/

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/

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/
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However, because the court

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2

Conclusion
In accordance with the foregoing, defendants’ motion for

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summary judgment is DENIED with respect to plaintiff’s excessive

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force against the individual defendants Mendoza and Surratt and is

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GRANTED in all other respects.

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IT IS SO ORDERED.

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DATED: This 4th day of February, 2015.

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____________________________
UNITED STATES DISTRICT JUDGE

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