Marino Scafidi v. Lvmpd ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARINO SCAFIDI, No. 18-16229
Plaintiff-Appellant,
D.C. No.
v. 2:14-cv-01933-
RCJ-GWF
LAS VEGAS METROPOLITAN POLICE
DEPARTMENT, a political subdivision
on behalf of State of Nevada; FCH1, OPINION
LLC, DBA Palms Casino Resort;
PALMS PLACE, LLC; UNIVERSITY
MEDICAL CENTER; D. MCGRATH,
LT.; S. COMISKEY, SGT.; K. POOL,
DET.; R. BEZA, DET.; A.
CHRISTENSEN, DET.; K. GRAMMAS,
CSI; JERI DERMANELIAN; FP
HOLDINGS, L.P.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Argued and Submitted January 22, 2020
San Francisco, California
Filed July 23, 2020
2 SCAFIDI V. LVMPD
Before: William A. Fletcher and Ryan D. Nelson, Circuit
Judges, and Donald W. Molloy,* District Judge.
Opinion by Judge W. Fletcher
SUMMARY**
Civil Rights
The panel affirmed in part and reversed in part the district
court’s summary judgment, and remanded, in an action
alleging (1) that plaintiff was arrested without probable cause
for sexual assault; and (2) that the police defendants
(a) misrepresented the results of the alleged victim’s sexual
assault exam on a warrant affidavit, (b) manipulated the
crime scene to make it look like plaintiff had drugged the
alleged victim, and (c) falsely accused plaintiff in the police
report of having drugged her.
The panel first held that the district court erred by
concluding that the probable cause determination made by the
Nevada justice of the peace at the preliminary hearing
precluded plaintiff from asserting in his federal suit that the
defendants lacked probable cause to arrest and detain him.
The panel held that plaintiff’s allegations that defendants
fabricated evidence or undertook other wrongful conduct in
*
The Honorable Donald W. Molloy, United States District Judge for
the District of Montana, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
SCAFIDI V. LVMPD 3
bad faith created a triable issue of material fact as to probable
cause, pursuant to the Nevada Supreme Court’s decision in
Jordan v. State ex rel. Dep’t of Motor Vehicles & Pub. Safety,
110 P.3d 30, 48–49 (Nev. 2005), overruled on other grounds
by Buzz Stew, LLC v. City of N. Las Vegas, 181 P.3d 670
(Nev. 2008), and this Court’s decision in Awabdy v. City of
Adelanto, 368 F.3d 1062 (9th Cir. 2004). Accordingly, the
panel reversed the district court’s order as to plaintiff’s claims
under 42 U.S.C. § 1983.
Addressing plaintiff’s state-law claims, the panel declined
to consider, for the first time on appeal, plaintiff’s argument
that Nev. Rev. Stat. § 41.036(2) is invalid and unenforceable
under the Nevada Supreme Court’s decision in Turner v.
Staggs, 510 P.2d 879 (Nev. 1973). The panel therefore
affirmed the district court’s ruling that plaintiff’s state-law
claims against the Las Vegas Metropolitan Police Department
were barred under § 41.036(2). The panel further held that
given the factual disputes, discretionary-act immunity did not
bar plaintiff’s state-law claims against the individual officers.
COUNSEL
Kirk T. Kennedy (argued), Las Vegas, Nevada; Gary A.
Modaferri, Las Vegas, Nevada; for Plaintiff-Appellant.
Craig R. Anderson (argued) and Kathleen A. Wilde, Marquis
Aurbach Coffing, Las Vegas, Nevada, for Defendants-
Appellees Las Vegas Metropolitan Police Department,
Lieutenant McGrath, Sergeant Comiskey, Detectives Pool,
Beza, and Christensen, and Crime Scene Analyst Grammas.
4 SCAFIDI V. LVMPD
Stephen B. Vogel (argued) and Jamie S. Hendrickson, Lewis
Brisbois Bisgaard & Smith LLP, Las Vegas, Nevada, for
Defendant-Appellee Jeri Dermanelian.
No appearance for Defendants-Appellees FCH1, LLC; Palms
Place, LLC; University Medical Center; and FP Holdings,
L.P.
OPINION
W. FLETCHER, Circuit Judge:
Marino Scafidi was criminally charged with three counts
of sexual assault under Nevada law. During the proceedings
that followed, state courts suppressed evidence seized
pursuant to a search warrant, and determined that the police
failed to preserve potentially exculpatory evidence.
Ultimately, all charges were dismissed pursuant to a motion
by the State.
Scafidi subsequently brought a federal civil rights claim
and state tort claims against, as relevant here, the Las Vegas
Metro Police Department (“LVMPD”), five officers, a crime
scene investigator, and the nurse who performed a sexual
assault exam on the alleged victim. He contends that the Las
Vegas police officers staged an incriminating crime scene
photo by moving his sleeping medications from the hotel
bathroom drawer into a mint container by his clothes in the
bedroom; falsely stated in a warrant application that the
alleged victim’s sexual assault exam revealed sexual assault
when it in fact only revealed sexual intercourse; threatened
him for asserting his constitutional rights; and made racially
derogatory remarks to him.
SCAFIDI V. LVMPD 5
The district court granted summary judgment to the
defendants on the ground that Scafidi was precluded from
relitigating the state justice of the peace’s determination at a
preliminary hearing that there was probable cause to believe
that he had committed a crime. Alternatively, the district
court concluded that Scafidi’s state claims against the
LVMPD were barred because he failed to comply with
Nevada’s administrative presentment statute, and that the
individual officers were entitled to discretionary immunity.
Scafidi timely appealed. We affirm the district court’s grant
of summary judgment to the LVMPD on Scafidi’s state-law
claims. We reverse and remand on the remaining claims.
I. Legal Standards
“We review a grant of summary judgment de novo.”
Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001) (en
banc). Summary judgment is appropriate where, viewing the
evidence in the light most favorable to the nonmoving party,
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law. Id.; Fed R.
Civ. P. 56(a).
When we adjudicate a state-law claim, our task “is to
approximate state law as closely as possible in order to make
sure that the vindication of the state right is without
discrimination because of the federal forum. In doing so,
federal courts are bound by the pronouncements of the state’s
highest court on applicable state law.” Ticknor v. Choice
Hotels Int’l, Inc., 265 F.3d 931, 939 (9th Cir. 2001) (internal
quotation marks and citations omitted). On issues of state
law, we are not bound by a prior opinion of our court where
an intervening decision from a state court of last resort has
“undercut the theory or reasoning underlying the prior circuit
6 SCAFIDI V. LVMPD
precedent in such a way that the cases are clearly
irreconcilable.” Miller v. Gammie, 335 F.3d 889, 900 (9th
Cir. 2003) (en banc).
II. Discussion
A. Preclusive Effect of Probable Cause
Determination at Preliminary Hearing
The district court concluded that the probable cause
determination made by the Nevada justice of the peace at the
preliminary hearing precluded Scafidi from asserting in his
federal suit that the defendants lacked probable cause to arrest
and detain him. In the court’s view, the existence of probable
cause necessarily meant that Scafidi’s federal and state-law
causes of action all failed. Because controlling Nevada state
precedent expressly rejects the view that a probable cause
determination at a preliminary hearing precludes later
relitigation of that question, we reverse.
“[F]ederal courts must ‘give to a state-court judgment the
same preclusive effect as would be given that judgment under
the law of the State in which the judgment was rendered.’”
Rodriguez v. City of San Jose, 930 F.3d 1123, 1130 (9th Cir.
2019) (quoting Migra v. Warren City Sch. Dist. Bd. of Educ.,
465 U.S. 75, 81 (1984)); see Allen v. McCurry, 449 U.S. 90,
96 (1980); 28 U.S.C. § 1738. The preclusive effect of a
judgment includes both claim preclusion and issue preclusion.
Taylor v. Sturgell, 553 U.S. 880, 892 (2008). Issue
preclusion, or collateral estoppel, “bars successive litigation
of an issue of fact or law actually litigated and resolved in a
valid court determination essential to the prior judgment.”
Rodriguez, 930 F.3d at 1130 (quoting White v. City of
Pasadena, 671 F.3d 918, 926 (9th Cir. 2012)). As long as a
SCAFIDI V. LVMPD 7
litigant had a full and fair opportunity to litigate the issue,
collateral estoppel under 28 U.S.C. § 1738 based on state-
court criminal proceedings applies to subsequent civil
litigation under 42 U.S.C. § 1983. See Allen, 449 U.S. at 101,
104–05.
A panel of this court previously held that under Nevada
law, a probable cause determination in a preliminary hearing
has preclusive effect in a subsequent suit. Haupt v. Dillard,
17 F.3d 285, 288–89 (9th Cir. 1994). Relying on our decision
in Haupt, the district court concluded that Scafidi was
collaterally estopped from relitigating whether there was
probable cause for his arrest, detention, and prosecution.
After Haupt was decided, but before the district court
issued its order, the Nevada Supreme Court recognized that
a probable cause determination in a preliminary hearing does
not preclude a plaintiff from litigating that issue in a
subsequent suit. Jordan v. State ex rel. Dep’t of Motor
Vehicles & Pub. Safety, 110 P.3d 30, 48–49 (Nev. 2005),
overruled on other grounds by Buzz Stew, LLC v. City of N.
Las Vegas, 181 P.3d 670 (Nev. 2008). Under Jordan, the
preliminary hearing probable cause determination is only
prima facie evidence of probable cause, which can be
overcome in a later proceeding with evidence of “false
testimony or suppressed facts.” Id. at 49 & n.65. In Jordan,
the plaintiff raised a triable issue on the question of probable
cause by introducing evidence that the police report was
insufficient to justify an arrest, and that the officer had lied in
the report and at the probable cause hearing. See id. at 38, 47,
49, 52.
The standard articulated in Jordan accords with the
standard under California law, which we have previously
8 SCAFIDI V. LVMPD
considered. In Awabdy v. City of Adelanto, 368 F.3d 1062
(9th Cir. 2004), we held that under California law, when the
plaintiff in the later proceeding alleges “fabricated evidence”
or “other wrongful conduct by state or local officials,” an
earlier determination of probable cause in a California
preliminary hearing does not preclude a plaintiff from
contesting the issue of probable cause in a later proceeding.
Id. at 1068. In so holding, we noted that “in virtually every
other jurisdiction, it is a long-standing principle of common
law that a decision by a judge or magistrate to hold a
defendant to answer after a preliminary hearing constitutes
prima facie—but not conclusive—evidence of probable cause
[in a subsequent tort suit].” Id. at 1067; see also Restatement
(Second) of Torts § 663 (1977); Exec. Mgmt., Ltd. v. Ticor
Title Ins. Co., 963 P.2d 465, 473 (Nev. 1998) (Nevada’s issue
preclusion test identical to California’s).
Here, Scafidi contended in the district court that the police
defendants misrepresented the results of the alleged victim’s
sexual assault exam on a warrant affidavit, manipulated the
crime scene to make it look like he had drugged the alleged
victim, and falsely accused him in the police report of having
drugged her. Under Jordan, Scafidi’s allegations of
“fabricated evidence, or other wrongful conduct undertaken
in bad faith” create a triable issue of material fact as to
probable cause. Jordan, 110 P.3d at 49 n.65 (2005) (quoting
Awabdy, 368 F.3d at 1067)).
The district court refused to consider Scafidi’s
contentions. Instead, it relied on Haupt to determine that
Scafidi was precluded as a matter of law from contesting
probable cause for both his federal and state-law claims.
Because Jordan, not Haupt, controls this appeal, we reverse
SCAFIDI V. LVMPD 9
the district court’s order as to Scafidi’s claims under § 1983.
See Gammie, 335 F.3d at 900.
B. State-Law Claims
The district court granted summary judgment on the state-
law claims on two alternative grounds. Therefore, our
decision under Jordan that the probable cause determination
at the preliminary hearing is not preclusive does not
automatically result in reversal as to those claims. For the
reasons that follow, we affirm the district court’s holding as
to the LVMPD. We reverse the district court’s holdings as to
the remaining defendants.
1. Nevada’s Administrative Claim Statute
Scafidi argues that Nev. Rev. Stat. § 41.036(2) is invalid
and unenforceable under the Nevada Supreme Court’s
decision in Turner v. Staggs, 510 P.2d 879 (Nev. 1973).
However, he did not present this argument to the district
court. “Absent exceptional circumstances, we generally will
not consider arguments raised for the first time on appeal,
although we have discretion to do so.” Baccei v. United
States, 632 F.3d 1140, 1149 (9th Cir. 2011). This case does
not present exceptional circumstances and we decline to
exercise our discretion to consider his argument under
Turner. We therefore affirm the district court’s ruling that
Scafidi’s state-law claims against the LVMPD are barred
under § 41.036(2).
2. Discretionary-Act Immunity
The claim statute bars claims against “political
subdivision[s] of the State” only. See Nev. Rev. Stat.
10 SCAFIDI V. LVMPD
§ 41.036(2). It does not bar Scafidi’s claims against the
individual defendants, who do not offer any reason why the
administrative claim statute applies to claims against
defendants sued in their individual capacity. Cf. Cavalieri v.
Las Vegas Metro. Police Dep’t, No. 2:11-CV-00351-ECR,
2012 WL 846466, at *5 (D. Nev. Mar. 13, 2012). The district
court concluded that the officers sued in their individual
capacity were shielded by Nevada’s discretionary-act
immunity.
Nevada discretionary-act immunity bars actions under
state law against employees of political subdivisions of the
state that are “[b]ased upon the exercise or performance or the
failure to exercise or perform a discretionary function or duty
. . . whether or not the discretion involved is abused.” Nev.
Rev. Stat. § 41.032.
A police officer’s decision to arrest and detain is a
discretionary act generally covered by § 41.032. Carey v.
Nev. Gaming Control Bd., 279 F.3d 873, 878 (9th Cir. 2002)
(citing Ortega v. Reyna, 953 P.2d 18, 18 (Nev. 1998)); see
also Gonzalez v. Las Vegas Metro. Police Dep’t, No. 61120,
2013 WL 7158415, at *3 (Nev. Nov. 21, 2013) (unpublished);
Fox v. State ex rel. its Dep’t of Corr., 373 P.3d 915 (Nev.
2011) (table).
However, discretionary-act immunity does not apply to
bad-faith conduct. See Falline v. GNLV Corp., 823 P.2d 888,
891 (Nev. 1991). “[Nevada Revised Statute] § 41.032 does
not protect a government employee for intentional torts or
bad-faith misconduct, as such misconduct, ‘by definition,
[cannot] be within the actor’s discretion.’” Franchise Tax
Bd. of California v. Hyatt, 407 P.3d 717, 733 (Nev. 2017)
(alteration in original) (quoting Falline, 823 P.2d at 891–92),
SCAFIDI V. LVMPD 11
rev’d on other grounds, 139 S. Ct. 1485 (2019). “[W]here an
officer arrests a citizen in an abusive manner not as the result
of the exercise of poor judgment as to the force required to
make an arrest, but instead because of hostility toward a
suspect or a particular class of suspects . . . or because of a
willful or deliberate disregard for the rights of a particular
citizen or citizens, the officer’s actions are the result of bad
faith and he is not immune from suit.” Davis v. City of Las
Vegas, 478 F.3d 1048, 1060 (9th Cir. 2007) (citing Falline,
823 P.2d at 892 n.3).
The district court concluded that there was no “evidence
that would permit a jury to find that [the LVMPD] acted with
malice in investigating and prosecuting Plaintiff, even if their
evidence collection and preservation might be described as
incomplete.” In so doing, the district court ignored evidence
of bad-faith misconduct in the record. If credited, Scafidi’s
affidavit establishes several acts of affirmative misconduct
that could cause a reasonable juror to conclude that the police
defendants acted in bad faith. According to Scafidi, police
defendants staged an incriminating crime-scene photograph;
misrepresented the results of the alleged victim’s sexual
assault exam in a warrant affidavit; threatened Scafidi with
extrajudicial violence in retaliation for asserting his
constitutional rights; and made racially derogatory remarks
about Scafidi.
In their motion for summary judgment, the police
defendants did not offer any evidence that negated the
evidence in Scafidi’s sworn statement. Because Scafidi’s
statements create a genuine dispute on the issue of bad faith,
the district court erred in determining on summary judgment
that discretionary-act immunity applied.
12 SCAFIDI V. LVMPD
Conclusion
We do not, of course, rule on the truth of Scafidi’s
evidence. We decide only that the justice of the peace’s
probable cause determination at the preliminary hearing does
not, as a matter of law, preclude him from litigating his
federal or state-law claims; and that, given the factual
disputes, discretionary-act immunity does nor bar his state-
law claims against the individual officers. On those claims,
we reverse and remand for further proceedings consistent
with this opinion. We affirm, however, the district court’s
grant of summary judgment to the LVMPD on Scafidi’s state-
law claims.
Each side shall bear its own costs.
AFFIRMED in part; REVERSED in part;
REMANDED.