Katricia Cloes v. City of Mesquite

FILED
NOT FOR PUBLICATION JUL 07 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KATRICIA CLOES, an individual, No. 12-15640
Plaintiff–Appellant, D.C. No. 2:09-cv-00851-PMP-
GWF
v.
CITY OF MESQUITE; CITY OF MEMORANDUM*
MESQUITE POLICE DEPARTMENT;
KIRT HUGHES,
Defendants–Appellees.
Appeal from the United States District Court
for the District of Nevada
Philip M. Pro, Senior District Judge, Presiding
Submitted January 14, 2014**
San Francisco, California
Before: TALLMAN and IKUTA, Circuit Judges, and O’CONNELL, District
Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Beverly Reid O’Connell, District Judge for the U.S.
District Court for the Central District of California, sitting by designation.
Katricia Cloes (Cloes) appeals two of the district court’s decisions: (1)
granting dismissal of Cloes’s claims against City of Mesquite Police Chief Douglas
Law (Chief Law) and Lieutenant Shane Charles (Lt. Charles); and (2) granting
summary judgment in favor of the City of Mesquite (City).
We lack jurisdiction to review the order and judgment dismissing Chief Law
and Lt. Charles from the action because Cloes did not name Chief Law or Lt.
Charles in her Notice of Appeal. See Le v. Astrue, 558 F.3d 1019, 1022 (9th Cir.
2009). We have jurisdiction to review the lower court’s summary judgment order
and judgment for the City pursuant to 28 U.S.C. § 1291.
We review de novo a district court’s decision to grant summary judgment.
Dreiling v. Am. Online Inc., 578 F.3d 995, 1000-01 (9th Cir. 2009). For the
following reasons, we affirm.
I. Monell Claim
First, we hold that the district court properly granted the motion for
summary judgment on Cloes’s Monell claim against the City. The district court
held that Cloes did not provide evidence to show that a City policy was the moving
force behind a constitutional injury. We agree.
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“Municipalities, their agencies, and their supervisory personnel cannot be
held liable under section 1983 on a theory of respondeat superior. They can,
however, be held liable for deprivations of constitutional rights resulting from their
policies or customs.” Shaw v. Cal. Dep’t of Alcoholic Beverage Control, 788 F.2d
600, 610 (9th Cir. 1986) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690–-
91 (1978)). “To hold a police department liable for the actions of its officers, the
[plaintiff] must demonstrate a constitutional deprivation, and show that the
deprivation was visited pursuant to a police department custom or policy.”
Munger v. City of Glasgow Police Dep’t, 227 F.3d 1082, 1087 (9th Cir. 2000). In
her second amended complaint, Cloes alleged that Chief Law inadequately
investigated allegations made by her and Sharon Jarvis (Jarvis)1, Hughes’s ex-wife,
as a part of a widespread policy to ignore accusations of sexual assault made
against police officers. The undisputed evidence does not show that such a policy
existed and so the district court properly granted summary judgment to the City.
In 2004, Jarvis verbally complained to the City regarding Officer Hughes’s
conduct; however, Jarvis declined to file a formal complaint against him. Her case
was referred to state investigators, but Jarvis filed a statement requesting the
investigation be closed. In 2007, Jarvis verbally complained; however, she
1
Sharon Jarvis is no longer a plaintiff in this action.
3
declined to file a formal complaint for a second time.2 Cloes could not identify any
other women who complained about Officer Hughes prior to August of 2008.
Without evidence of a widespread policy, Cloes is limited to the isolated
facts of her case. See Webb v. Sloan, 330 F.3d 1158, 1164 (9th Cir. 2003) (“A
single constitutional deprivation ordinarily is insufficient to establish a
longstanding practice or custom.” (internal citation and alterations omitted)
(quoting Christie v. Iopa, 176 F.3d 1231, 1235 (9th Cir. 1999))). Even assuming
that a policy existed, when Cloes registered her written complaint in August 2008,
the City properly referred the case to an independent outside investigative agency.
Thereafter, the City terminated Officer Hughes. This does not rise to the level of
“deliberate indifference” necessary to invoke Monell liability. See Bd. of Cnty.
2
Cloes points to the City’s policy requiring a written complaint and argues it
constitutes deliberate indifference. We are unpersuaded by this argument. Nevada
employees are presumed to be “at will,” Am. Bank Stationery v. Farmer, 799 P.2d
1100, 1101-02 (Nev. 1900); however, Officer Hughes was a union member and the
City was required to go through union grievance proceedings with employee
complaints. Nevada law requires that an employer have substantial evidence prior
to taking adverse employment action for just or good cause. See Sw. Gas Corp. v.
Vargas, 901 P.2d 693, 701 (Nev. 1995) (“In agreement with the standard as set
forth in Baldwin and Braun, we hold that a discharge for ‘just’ or ‘good’ cause is
one which is not for any arbitrary, capricious, or illegal reason and which is one
based on facts (1) supported by substantial evidence, and (2) reasonably believed
by the employer to be true.”) The City’s policy is consistent with the law.
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Comm’rs v. Brown, 520 U.S. 397, 411 (1997) (“[T]his showing of an instance of
inadequate screening is not enough to establish ‘deliberate indifference.’”).
Cloes fails to show evidence of a constitutional violation. On December 4,
2007, Cloes reported the incident to the police department. That same day, Chief
Law visited Cloes twice and provided her with a complaint form. Chief Law
informed Cloes that the City could not proceed with an investigation without a
formal complaint. Despite this information, Cloes declined to file a formal
complaint until August 2008. The City then initiated an investigation, suspended
Officer Hughes, and ultimately terminated him. Cloes presents no evidence that
Chief Law or other members of the police department failed to investigate or
worked to conceal her allegations against Officer Hughes. Accordingly, there is no
genuine issue of material fact. See Scott v. Harris, 550 U.S. 372, 380 (2007)
(holding that “[w]hen opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable jury could believe it, a
court should not adopt that version of the facts for purposes or ruling on a motion
for summary judgment”); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (“[A]
complete failure of proof concerning an essential element of the nonmoving party’s
case necessarily renders all other facts immaterial [and] . . . entitle[s] the [moving
party] to judgment as a matter of law.” (quotations and internal alterations
5
omitted)). We hold that the district court properly granted the motion for summary
judgment on Cloes’s Monell claim.
II. Federal Conspiracy Claims
Second, we hold that Cloes waived opposition to the decision on her federal
conspiracy claims brought pursuant to 42 U.S.C. § 1983 and § 1985. In her
opening brief, Cloes does not specifically address those claims. “We review only
issues which are argued specifically and distinctly in a party’s opening brief.”
Cruz v. Int’l Collection Corp., 673 F.3d 991, 998 (9th Cir. 2012) (quoting
Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994)).
III. State Law Claims
Third, we hold that the district court properly granted summary judgment on
Cloes’s state law tort claims.
A. Sexual Assault and Intentional Infliction of Emotional Distress
The district court properly concluded as a matter of law that the City could
not be liable for Officer Hughes’s sexual assault and intentional infliction of
emotional distress under a theory of respondeat superior. Nevada Revised Statute
Section 41.745(1) reads:
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An employer is not liable for harm or injury caused by the intentional
conduct of an employee if the conduct of the employee: (a) Was a
truly independent venture of the employee; (b) Was not committed in
the course of the very task assigned to the employee; and (c) Was not
reasonably foreseeable under the facts and circumstances of the case
considering the nature and scope of his or her employment.
Nev. Rev. Stat. § 41.745(1).
Cloes fails to raise a genuine issue of material fact as to whether Officer
Hughes was truly engaged in an independent venture. See id. § 41.745(1)(a). In
determining whether something is truly an independent venture, Nevada decisions
assess whether the actions are done for the employee’s purpose or are performed
out of a sense of duty to the employer. See J.C. Penney Co. v. Gravelle, 155 P.2d
477, 481-82 (Nev. 1945). In Gravelle, the Nevada Supreme Court ruled that a
store clerk was on an independent venture when he assaulted a third-party
bystander who had attempted to intervene in the pursuit of a shoplifter. Id.Though the clerk was on-duty, the court reasoned that he was not employed to
commit assault and battery. Id. Further, the assault occurred after the clerk
retrieved and returned the store’s merchandise and after the thief escaped. Id. at
481. As such, the court concluded that the clerk acted for his own purposes, not to
recover the property but to punish the bystander for interfering. Id.; see also Wood
v. Safeway, Inc., 121 P.3d 1026, 1035-37 (Nev. 2005) (per curiam) (affirming the
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district court’s order granting summary judgment in favor of a corporate defendant
and citing to Gravelle).
Like the store clerk in Gravelle, Officer Hughes was acting for his own
purposes. The undisputed evidence shows he arrived at Cloes’s home on
December 3, 2007, to deliver his wedding announcement. Cloes’s deposition
testimony confirmed that she recognized Officer Hughes at the door and invited
him in for coffee. Officer Hughes was in uniform, but he had not been called to
the home and there was no evidence that personal visits of this nature were part of
his job. After he was greeted by his first name and invited to stay for coffee,
Officer Hughes mentioned he had a trainee waiting outside and explained that he
could not stay for long.
This set of facts is distinguishable from Rockwell v. Sun Harbor Budget
Suites, 925 P.2d 1175 (Nev. 1996). In Rockwell, the Nevada Supreme Court held
that there was a genuine issue of material fact as to whether an employee was
acting in the scope of his employment when he murdered a tenant at the building
where he served as a guard. Id. at 1180-81. Though the employee was off-duty,
evidence suggested he was actively guarding the premises of the apartment
building when he shot his girlfriend and used his work radio to call for help. Id. at
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1181. Further, there was evidence that off-duty guards carried emergency radios
and responded to calls. Id. “Generally, whether an employee is acting within the
scope of his or her employment is a question for the trier of fact, but where
undisputed evidence exists concerning the employee’s status at the time of the
tortious act, the issue may be resolved as a matter of law.” Id. at 1180. Here, the
undisputed evidence establishes that Officer Hughes was on a personal errand to
deliver a wedding invitation and was invited to stay for coffee.
Next, Cloes fails to raise a genuine issue of material fact with respect to
whether the act was committed in the course of the very task assigned to Officer
Hughes. See Nev. Rev. Stat. § 41.745(1)(b). Nevada law has narrowly interpreted
whether something constitutes the very task assigned to the employee. See Wood,
121 P.3d at 1035-37 (concluding that a sexual assault was outside the course and
scope of a janitor’s employment). As discussed above, Officer Hughes was not
called to the scene of Cloes’s home. There is no evidence to raise a triable issue as
to whether the sexual assault was committed in the course of the very task assigned
to Hughes.
Finally, the record reveals no genuine issue of material fact as to the
foreseeability of Officer Hughes’s actions. The City conducted a background
9
check and sought a psychological evaluation of Officer Hughes prior to hiring him.
Neither investigation revealed any issues regarding Officer Hughes’s fitness to be a
police officer. There is nothing else in the record to show this misconduct was
foreseeable. See id. at 1036-37 (reasoning that an employee’s conduct was not
foreseeable because evidence showed the employer checked the employee’s
references prior to hiring him and had received no prior complaints).
As such, we hold that the district court properly granted summary judgment
on Cloes’s claims against the City for sexual assault and intentional infliction of
emotional distress under a theory of respondeat superior.
B. Negligent Hiring, Training, and Supervision and Negligent
Infliction of Emotional Distress
The district court properly found that Cloes’s claims of negligent hiring,
training, and supervision were barred by discretionary immunity.
Nevada Revised Statute section 41.032(2) provides an exception to
Nevada’s statutory waiver of sovereign immunity. Martinez v. Maruszczak, 168
P.3d 720, 723 (Nev. 2007). Under section 41.032(2), discretionary immunity
precludes an action against an immune contractor or an officer or employee of the
State or any of its agencies or political subdivisions that is:
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Based upon the exercise or performance or the failure to exercise or
perform a discretionary function or duty on the part of the State or any
of its agencies or political subdivisions or of any officer, employee or
immune contractor of any of these, whether or not the discretion
involved is abused.
Nev. Rev. Stat. § 41.032(2).
Nevada has “adopt[ed] the two-part federal test . . . for determining when the
discretionary-function exception to the general waiver of governmental immunity
applies.” Martinez, 168 P.3d at 722. “[A] decision must (1) involve an element of
individual judgment or choice and (2) be based on considerations of social,
economic, or political policy.” Id. at 729.
Nevada looks to federal decisional law for guidance on what type of conduct
discretionary immunity protects. Id. at 727. “This court and others have held that
decisions relating to the hiring, training, and supervision of employees usually
involve policy judgments of the type Congress intended the discretionary function
exception to shield.” Vickers v. United States, 228 F.3d 944, 950 (9th Cir. 2000).
Nonetheless, “where an officer’s actions are ‘attributable to bad faith, immunity
does not apply whether an act is discretionary or not.’” Davis v. City of Las Vegas,
478 F.3d 1048, 1059 (9th Cir. 2007) (quoting Falline v. GNLV Corp., 823 P.2d
888, 891 (Nev. 1991)). Additionally, acts that violate the Constitution cannot be
11
viewed as discretionary. Nurse v. United States, 226 F.3d 996, 1002 (9th Cir.
2000).
There is no evidence in the record establishing bad faith or a constitutional
violation that would preclude discretionary immunity. The City took precautions
when it hired Officer Hughes by interviewing and screening him. After a formal
complaint was filed against Officer Hughes, an independent agency conducted an
investigation and the City terminated Hughes. Because Nevada looks to Ninth
Circuit precedent to determine the scope of discretionary immunity and we have
consistently held that training and supervision are acts entitled to such immunity,
the City is entitled to discretionary immunity on this claim.
As such, we hold that the district court properly granted summary judgment
on Cloes’s claims of negligent hiring, training, and supervision and negligent
infliction of emotional distress.
AFFIRMED.
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