Cristina Paulos v. Las Vegas Metro. Police Dept. , 685 F. App'x 581 ( 2017 )

FILED
NOT FOR PUBLICATION
MAR 28 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CRISTINA PAULOS, No. 15-15728
Plaintiff-Appellant, D.C. No.
2:13-cv-01546-JCM-PAL
v.
FCH1, LLC, a Nevada MEMORANDUM*
limited liability company; LAS VEGAS
METROPOLITAN
POLICE DEPARTMENT, a
governmental entity; JAKE VON
GOLDBERG, an individual; JEFFREY
SWAN, an individual; AARON BACA, an
individual; and JEANNIE HOUSTON, an
individual,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted March 13, 2017
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Page 2 of 4
Before: FERNANDEZ and WATFORD, Circuit Judges, and STATON,** District
Judge.
Cristina Paulos appeals the district court’s order granting summary judgment
in favor of the Las Vegas Metropolitan Police Department and Officers Aaron
Baca, Jake Von Goldberg, and Jeffrey Swan.
“We review de novo both the grant of summary judgment and the
conclusion that a public employee is entitled to qualified immunity.” C.F. ex rel.
Farnan v. Capistrano Unified Sch. Dist., 654 F.3d 975, 983 (9th Cir. 2011). To
overcome the officers’ assertion of qualified immunity at summary judgment,
Paulos had to demonstrate that, (1) when viewing the facts in the light most
favorable to her, a reasonable jury could conclude that the officers engaged in
excessive force, and (2) the right was clearly established at the time of the officers’
conduct. Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled in part by Pearson
v. Callahan, 555 U.S. 223 (2009). We exercise our discretion to proceed
immediately to whether any constitutional right at issue here was clearly
established. See Pearson, 555 U.S. at 236-42.
An officer “cannot be said to have violated a clearly established right unless
the right’s contours were sufficiently definite that any reasonable official in the
**
The Honorable Josephine L. Staton, United States District Judge for
the Central District of California, sitting by designation.
Page 3 of 4
defendant’s shoes would have understood that he was violating it.” Plumhoff v.
Rickard, 134 S. Ct. 2012, 2023 (2014). No decision from the Supreme Court or
this Circuit clearly establishes that keeping a suspect on hot asphalt for
approximately two minutes and forty seconds after backup officers arrive on the
scene constitutes excessive force when the suspect does not inform the officers that
the pavement is hurting her. See, e.g., Alexander v. Cty. of Los Angeles, 64 F.3d
1315, 1323 (9th Cir. 1995) (reversing a district court’s grant of summary judgment
when the suspect “repeatedly” asked the officer to loosen his handcuffs because of
his medical condition). Nor is there a consensus among other courts that the
conduct in question amounts to excessive force. See Rubio v. Lopez, 445 F. App’x
170, 173-75 (11th Cir. 2011) (finding no clearly established constitutional
violation); Howard v. Kansas City Police Dep’t, 570 F.3d 984, 990 (8th Cir. 2009)
(finding that a reasonable jury could conclude that the officers used excessive force
because the plaintiff voiced “persistent, specific complaints”).
Paulos’s Monell claim likewise fails because she did not provide sufficient
evidence of a pattern of similar, allegedly unconstitutional conduct, see Connick v.
Thompson, 563 U.S. 51, 62 (2011), and the Las Vegas Metropolitan Police
Department’s mere failure to discipline its officers “does not amount to ratification
of their allegedly unconstitutional actions.” Sheehan v. City & Cty. of San
Page 4 of 4
Francisco, 743 F.3d 1211, 1231 (9th Cir. 2014), rev’d in part, cert. dismissed in
part, 135 S. Ct. 1765 (2015).
AFFIRMED.