OPINION & ORDER
Defendants' Motion for Summary Judgment (Dkt. No. 18) and Plaintiff's Motion for Partial Summary Judgment (Dkt. No. 21)
RICHARD F. BOULWARE, II, UNITED STATES DISTRICT JUDGE.
Before the Court are Defendants' Motion for Summary Judgment (Dkt. No. 18) and Plaintiff's Motion for Partial Summary Judgment (Dkt. No. 21). For the reasons elaborated below, Defendants' Motion for Summary Judgment is granted, and Plaintiff's Motion for Partial Summary Judgment is denied.
Victor Patino filed a Complaint against Sergeant Wilson, Sheriff Gillespie, and the Las Vegas Metropolitan Police Department ("LVMPD") on January 3, 2015. (Dkt. No. 1). The complaint brought four causes of action: a claim against Sergeant Wilson alleging violation of Patino's Fourth and Fourteenth Amendment rights under 42 U.S.C. § 1983; a
Defendants filed a Motion for Summary Judgment on February 18, 2016. (Dkt. No. 18). Patino filed his Response on March 18, 2016, (Dkt. No. 26), and Defendants filed a Reply on April 5, 2016 (Dkt. No. 29). Patino filed a Motion for Partial Summary Judgment on February 26, 2016. (Dkt. No. 21). Defendants filed a Response on March 18, 2016, (Dkt. No. 25) and Plaintiff filed a Reply on April 11, 2016 (Dkt. No. 30).
Plaintiff's Motion for Partial Summary Judgment is raised as to three issues also raised in Defendant's Motion for Summary Judgment: Defendant Wilson's entry into Patino's backyard, Defendant Wilson's seizure of Patino's dog, Bubba, and Defendant Wilson's entitlement to qualified immunity. The same arguments are raised both in Plaintiff's Motion for Partial Summary Judgment and in his Response to Defendant's Motion for Summary Judgment. Therefore, the Court addresses both Motions jointly.
A. Undisputed and Disputed Facts
The Court incorporates its discussion of the undisputed and disputed facts from its hearing on September 2, 2016. The Court discusses and elaborates these facts here.
a. Undisputed Facts
The Court finds the following facts to be undisputed. On January 6, 2013, Sergeant Wilson responded to a call on 211 Earl Street, located directly behind 16
Sergeant Wilson called dispatch to verify the address. (Defs.' Ex. 6, "LVMPD Radio DTAC"). About 15 seconds later, Sgt. Wilson informed dispatch that he heard what he thought to be a gunshot "right across the street from me." (Defs.' Ex. 6). Wilson walked across the street to the other side of Earl Street. Fearing someone may be hurt or in danger, he attempted to look into the backyards of the houses on Earl Street. As he was investigating, he heard a sound he believed to be moaning or a muffled yell. Wilson updated dispatch with this new development
The 147 S. 16th Street property has two separate living structures — the main house and a "Casita", a small residence in the back. There is a pathway from the front yard back to the Casita, and it is not uncommon for visitors to walk directly back to the Casita and bypass the main residence. The property has a fence that encloses the backyard and the Casita. After arriving at 147 S. 16th St., Wilson was met by Officer Joseph Hemphill, Officer Zachary Baughman, and Officer Mark LaFavor. Wilson and Hemphill decided to check the backyard of the property to ensure that no one was injured or otherwise in danger. According to LVMPD policy, officers can search a residence, without a warrant, when exigent circumstances or an emergency exists. (Defs. Ex. 8). Wilson and Hemphill entered the yard to ensure that no one was injured or in danger based upon Wilson's good faith belief that he had heard a gunshort and a moaning sound.
Wilson and Hemphill walked to the gate enclosing the backyard and looked into the backyard. They could see portions of the backyard as well as the Casita. They did not see anyone from their vantage point, but decided to search the backyard and approach the Casita to make sure no one was injured. Wilson took the lead and entered the backyard, followed by Hemphill. Wilson entered the backyard and headed towards the Casita. As he walked into the backyard, Bubba, Patino's pit bull, came into Wilson's view. Wilson warned Hemphill, "Dog," and began to back up. When he began to back up, Bubba turned towards Wilson with his ears back. Bubba began running at Wilson at a full sprint. A second pit bull was in the yard and also began approaching Wilson. Wilson and Hemphill began backing up quickly. Wilson attempted to get the pit bull to stop by yelling "Stop! Stop!".
When Bubba was within two feet of Wilson, Wilson fired his service weapon at Bubba. Hemphill also perceived Bubba as a serious threat and was preparing to use his shotgun to shoot the dog. Wilson called the incident into dispatch and requested animal control. Wilson began looking for the second pit bull, but it had disappeared.
Patino did not witness any of these events, and was sleeping at the main residence and was woken up by his mother, who heard the shots. Patino exited and saw five or six officers in the backyard. He realized his pit bull had been shot, and he began questioning the officers. Subsequently, Patino participated in the LVMPD investigation of what had occurred.
b. Disputed Facts
According to Patino, the fence surrounding his property had a "Beware of Dog" sign affixed to it. Wilson does not recall having seen such a sign, and none of the attendant Officers from the date of the incident recall having seen the sign. During discovery, Defendants asked Patino to produce a photograph of the sign, but Patino responded that "upon information and belief Defendant officers took down the Beware of Dog sign" and denied having it in his possession. He has produced no other evidence or deposition testimony regarding the sign.
Patino also alleges that the LVMPD had previously been to the Patino residence and was on notice about his dogs. None of the officers on the scene on the date of the
III. LEGAL STANDARD
Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a);
A. Section 1983 Claim Against Officer Wilson for Entry Into Backyard and Shooting of Dog
To make out a prima facie case under § 1983, a plaintiff must show that a defendant: (1) acted under color of law, and (2) deprived the plaintiff of a constitutional right.
Defendants argue that Plaintiff has not raised a Fourth Amendment claim regarding Wilson's illegal entry into his backyard, and that therefore this issue need not be addressed. Although Plaintiff did not clearly state, in the relevant count of his Complaint, that the Fourth Amendment claim applies to the warrantless entry into Patino's backyard, the Complaint does allege as part of that claim that Wilson entered the yard without permission. Although Defendants argue the claim was not properly raised, they nevertheless addressed the reasonableness of the entry in their briefing and oral arguments. Construing Patino's Complaint liberally to include a Fourth Amendment claim for both warrantless entry into the yard and shooting of the dog, the Court analyzes both grounds.
Here, Wilson's entry into the backyard was reasonable under the circumstances because he had reasonable grounds to believe there was an emergency occurring, involving a potentially injured person in need of immediate assistance. Searches and seizures without a warrant are "presumptively unreasonable."
In this case, the undisputed facts show that Wilson had reasonable grounds to believe there was an emergency. He heard what sounded like gunshots coming from the direction of Patino's home. He also heard what he perceived to be an injured person making a distressed sound from Patino's backyard or the Casita. He relayed all of these perceptions over his radio to dispatch. Wilson did not have any investigatory or evidence-seeking motivation when he entered Patino's backyard. He entered it with the intention of approaching the Casita in the backyard to make sure that nobody was in immediate danger. Therefore, Wilson had an objectively reasonable basis for believing there was an emergency and for associating the emergency with Patino's house, and his entry into Patino's backyard did not constitute an unreasonable entry or search. Even if other, reasonable methods of investigating the sounds, like knocking on the front door, existed, that does not make Wilson's backyard entry objectively unreasonable, especially in light of Patino's concession that individuals often approached the Casita directly through the pathway to the backyard.
Furthermore, Wilson's decision to shoot the pit bull was reasonable based on the undisputed factual record. The shooting of a dog must be reasonable under the totality of the circumstances.
Plaintiff argues that the alleged "Beware of Dog" sign gave Wilson forewarning of the dogs' presence and made his actions unreasonable. Aside from Plaintiff's bare allegation, he has provided no evidentiary support for the fact that such a sign existed. Bare allegations are insufficient to create a genuine dispute of material fact.
Although the Court need not reach this issue, the Court also finds that, to the extent there was a constitutional violation, Wilson would be entitled to qualified immunity. "[T]he doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."
Therefore, the Court grants summary judgment in favor of Defendant Wilson as to Patino's Fourth and Fourteenth Amendment claims against him. The Court also holds, in the alternative, that qualified immunity shields Wilson from liability in this case. His entry into the property was reasonable and falls into the emergency exception for warrantless searches. At most, he made a "reasonable mistake" in entering the backyard when there was no actual emergency, and is protected by qualified immunity. His shooting of Bubba was a reasonable, split-second reaction amidst emergency circumstances.
B. Section 1983,
Monell Claim Against LVMPD and Sheriff Gillespie
"A suit against a governmental official in his official capacity is equivalent to a suit against the governmental entity itself."
As previously analyzed, the Court finds no constitutional violation against Patino on the basis of Wilson's conduct on the date of the incident. His entry into the backyard in response to a perceived emergency and injury that was thought to be located at Patino's residence was reasonable, and his shooting of the pit bull who was running towards him and was two feet away from him was also reasonable. Therefore, there was no unconstitutional action to undergird a
Furthermore, Patino has not generated any evidence of an unconstitutional policy or custom, or a lack of training or supervision. Just because, as Patino states, the dog shooting was found to be "within policy", that does not mean LVMPD's policy, which states that the use of a firearm in self-defense is permitted to "prevent serious harm to the officer or others ..." is unconstitutional. Additionally, Patino has provided no evidence of "deliberate indifference" to training or supervision of officers. Deliberate indifference is shown when the need for "training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the municipality can reasonably be said to have been deliberately indifferent to the need."
At the hearing on this motion, Patino argued that the LVMPD's investigatory determination that there was no
Therefore, the Court grants summary judgment in favor of Defendants as to Patino's
C. State Law Negligence and IIED Claims
a. Negligence Claim
To prove a claim for negligence, the plaintiff must demonstrate that he was owed a duty of care; that defendant breached that duty; that the breach was the legal cause of Patino's injury; and that Patino suffered damages.
b. Intentional Infliction of Emotional Distress (IIED)
In order to prevail on a claim of intentional infliction of emotional distress, a plaintiff must show (1) extreme and out-rageous conduct with either the intention of, or reckless disregard for, causing emotional distress, (2) the plaintiff's having suffered severe or extreme emotional distress, and (3) actual or proximate causation.
Defendants have cited to Nev. Rev. Stat. 41.740, which is Nevada's statutory scheme for recovery for the death of a pet. The statute allows for the reimbursement of certain expenses, but prohibits the award of punitive and noneconomic damages for the death of a pet. N.R.S. 41.740(2). Plaintiff has not cited to any case law that would create an exception in this case, and allow him to recover for emotional distress due to the death of his pet. The Court therefore grants summary judgment in favor of Defendants as to Patino's IIED claims, which are preempted by N.R.S. 41.740's statutory recovery scheme.
Additionally, the Court finds, as discussed above, that the undisputed facts demonstrate that the officers did not engage in extreme or outrageous conduct. Plaintiff therefore cannot establish a prima facie case for intentional infliction of emotional distress.
IT IS THEREFORE ORDERED that Defendants' Motion for Summary Judgment is GRANTED as to all of Plaintiff's