Hoch v. Gaughan South, LLC

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA [3] TODD HOCH, [4] Plaintiff, Case No.: 2:23-cv-00066-GMN-BNW [5] vs. ORDER [6] GAUGHAN SOUTH LLC, et al., [7] Defendants. [8] 9 Pending before the Court is Plaintiff’s Motion for Partial Summary Judgment, (ECF No. 10 49). Defendant Gaughan South LLC d/b/a South Point Hotel and Casino (“South Point”) filed 11 a Response, (ECF No. 63), and Defendants Las Vegas Metropolitan Police Department 12 (“LVMPD”) and Officer Pavlov (collectively “the LVMPD Defendants”) also filed a Response, 13 (ECF No. 66). Plaintiff filed Replies (ECF Nos. 72, 73). 14 Also pending before the Court is the LVMPD Defendants’ Motion for Summary 15 Judgment, (ECF No. 67). Plaintiff filed a Response, (ECF No. 75). Further pending before the 16 Court is Defendant South Point’s Motion for Summary Judgment, (ECF No. 68), to which the 17 LVMPD Defendants joined, (ECF No. 71). Plaintiff filed a Response, (ECF No. 76). 18 Further pending before the Court is Plaintiff’s Motion in Limine, (ECF No. 45). 19 Defendant South Point filed a Response, (ECF No. 52), to which the LVMPD Defendants 20 joined, (ECF No. 55). Plaintiff filed a Reply, (ECF No. 56). Lastly pending before the Court is 21 Plaintiff’s Motion for Leave, (ECF No. 57), to file his Reply, (ECF No. 56). 22 For the reasons discussed below, the Court DENIES Plaintiff’s Motion for Partial 23 Summary Judgment, GRANTS the LVMPD Defendants’ Motion for Summary Judgment, and 24 GRANTS Defendant South Point’s Motion for Summary Judgment. And because the Court [25] 1 finds that Plaintiff’s Motion in Limine and the related Motion for Leave are premature, the 2 Court DENIES the motions.1 3 I. BACKGROUND 4 This case arises from Plaintiff’s seizure by Defendant South Point and Defendant Pavlov 5 following his noncompliance with a statewide mask mandate in 2020 while at South Point 6 Casino. (See generally Second Amend. Compl. (“SAC”), ECF No. 32). The State of Nevada 7 implemented a mask mandate for establishments, like Defendant South Point, during the 8 Covid-19 pandemic.2 South Point was responsible for enforcing the mask mandate on its 9 property. Id. Security camera footage reveals that Plaintiff failed to comply with the mask 10 mandate while on South Point’s premises. (See generally South Point Security Camera 11 Footage, Ex. A to South Point’s Resp., manual filing). Plaintiff is shown failing to keep his 12 neck gator pulled up over his nose and mouth for most of the footage. (See id., Ex. A to South 13 Point’s Resp.). South Point employees warned Plaintiff that he was non-complaint with the 14 mask mandate. (Hoch Decl. ¶ 6, Ex. 1 to Pl.’s Mot. Partial Summ. J. (“MPSJ”), ECF No. 49-1). 15 Soon after the warning, a South Point casino employee told Plaintiff to “call it a night.” (Id. ¶ 7, 16 Ex. 1 to Pl.’s MPSJ). Plaintiff got up to leave but then changed his mind and returned to the 17 casino floor. (Id. ¶¶ 8–10, Ex. 1 to Pl.’s MPSJ). South Point security staff then told Plaintiff to 18 leave. (Id. ¶ 11, Ex. 1 to Pl.’s MPSJ). [20] 21 1 “A motion in limine is a procedural mechanism to limit in advance testimony or evidence in a particular area.” United States v. Heller, 551 F.3d 1108, 1111 (9th Cir. 2009). Motions in limine may be “made before or during 22 trial, to exclude anticipated prejudicial evidence before the evidence is actually offered.” Luce v. United States, 469 U.S. 38 , 40 n.2, 105 S.Ct. 460 , 83 L.Ed.2d 443 (1984). “Although the Federal Rules of Evidence do not 23 explicitly authorize in limine rulings, the practice has developed pursuant to the district court’s inherent authority to manage the course of trials.” Id. at 4 n.4 (emphasis added). Here, no trial date has been set in this matter and 24 the Court finds that a Motion in Limine is premature at this stage in the proceedings. 2 See Health & Safety Policies for Resumption of Operations, 25 https://www.scribd.com/document/459806375/Health-and-Safety-Policy-for-the-Resumption-of-GamingOperationsNonrestrictedLicensees#from_embed&referrer=eater.com&sref=https://vegas.eater.com/2020/5/4/212 46453/nightclubs-pool-parties-will-not-reopen-casinos-nevada-gaming-control-board-guidelines. 1 After security staff told Plaintiff to leave the premises, Plaintiff approached the cashier’s 2 cage. (Id. ¶ 12, Ex. 1 to Pl.’s MPSJ). While at the cashier’s cage, an encounter occurred 3 between a security officer and Plaintiff where the security officer pointed towards the exit with 4 a white trespass card in his hand. (South Point Security Camera Footage at “11-01-20 Security 5 Officer takes out trespass card” Clip 1 #11386, Ex. A to South Point’s Resp., manual filing). 6 Plaintiff maintains that the white trespass card was not read to him, and he was not given 7 a trespass warning. (Hoch Decl. ¶¶ 7, 11, Ex. 1 to Pl.’s MPSJ). Upon cashing his chips, 8 Plaintiff proceeded to the elevators. (Id. ¶ 12, Ex. 1 to Pl.’s MPSJ). Plaintiff made it all the way 9 to the garage elevator inside the casino before he turned around and returned to the casino floor 10 because he remembered his car was parked elsewhere. (Id. ¶¶ 12, 13, Ex. 1 to Pl.’s MPSJ). 11 Plaintiff was instructed for the third time to leave and insisted on leaving out the main exit, 12 despite being told to exit elsewhere by South Point security. (Id. ¶ 19(e), Ex. 1 to Pl.’s MPSJ). 13 As Plaintiff attempted to walk out of the casino, he and South Point security continuously 14 engaged each other. (Id. ¶¶ 19–21, Ex. 1 to Pl.’s MPSJ). A physical altercation took place 15 between Plaintiff and a South Point security officer which resulted in a security officer 16 handcuffing Plaintiff. (Id. ¶ 23). Plaintiff was then led to a security holding cell and South 17 Point contacted LVMPD indicating that they had an individual in custody for trespass. (Id., Ex. 18 1 to Pl.’s MPSJ); (See Pavlov Dep. 46:7–10, Ex. C to LVMPD Defs.’ Mot Summ. J. (“MSJ”), 19 ECF No. 67-2). When LVMPD police officer Defendant Pavlov arrived on scene, he viewed 20 Plaintiff as being aggressive with him. (Id. 30:1–12, Ex. C to LVMPD Defs.’ MSJ). At that 21 point, it was Pavlov’s impression that South Point had not formally read the trespass card to 22 Plaintiff. (Id. 30:9–12, Ex. C to LVMPD Defs.’ MSJ). Pavlov then issued a misdemeanor 23 trespass warning to Plaintiff. (Hoch Decl. ¶ 27–29, Ex. 1 to Pl.’s MPSJ). 24 Plaintiff now moves for partial summary judgment as to liability for all his claims against 25 Defendants except for his intentional infliction of emotion distress (“IIED”) claim. Defendant 1 South Point and the LVMPD Defendants each move for full summary judgment on every claim 2 against them. 3 II. LEGAL STANDARD 4 The Federal Rules of Civil Procedure provide for summary adjudication when the 5 pleadings, depositions, answers to interrogatories, and admissions on file, together with the 6 affidavits, if any, show that “there is no genuine dispute as to any material fact and the movant 7 is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Material facts are those that 8 may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 9 A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to 10 return a verdict for the nonmoving party. Id. “The amount of evidence necessary to raise a 11 genuine issue of material fact is enough ‘to require a jury or judge to resolve the parties’ 12 differing versions of the truth at trial.’” Aydin Corp. v. Loral Corp., 718 F.2d 897, 902 (9th Cir. 13 1983) (quoting First Nat’l Bank v. Cities Serv. Co., 391 U.S. 253 , 288–89 (1968)). “Summary 14 judgment is inappropriate if reasonable jurors, drawing all inferences in favor of the nonmoving 15 party, could return a verdict in the nonmoving party’s favor.” Diaz v. Eagle Produce Ltd. 16 P’ship, 521 F.3d 1201, 1207 (9th Cir. 2008). A principal purpose of summary judgment is “to 17 isolate and dispose of factually unsupported claims or defenses.” Celotex Corp. v. Catrett, 477 18 U.S. 317 , 323–24 (1986). 19 In determining summary judgment, a court applies a burden-shifting analysis. “When 20 the party moving for summary judgment would bear the burden of proof at trial, it must come 21 forward with evidence which would entitle it to a directed verdict if the evidence went 22 uncontroverted at trial. In such a case, the moving party has the initial burden of establishing 23 the absence of a genuine issue of fact on each issue material to its case.” C.A.R. Transp. 24 Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474 , 480 (9th Cir. 2000) (internal citation and 25 quotation marks omitted). In contrast, when the nonmoving party bears the burden of proving 1 the claim or defense, the moving party can meet its burden in two ways: (1) by presenting 2 evidence to negate an essential element of the nonmoving party’s case; or (2) by demonstrating 3 that the nonmoving party failed to make a showing sufficient to establish an element essential 4 to that party’s case on which that party will bear the burden of proof at trial. Celotex Corp., 477 5 U.S. at 323–24. If the moving party fails to meet its initial burden, summary judgment must be 6 denied, and the court need not consider the nonmoving party’s evidence. Adickes v. S.H. Kress 7 & Co., 398 U.S. 144 , 158–60 (1970). 8 If the moving party satisfies its initial burden, the burden then shifts to the opposing 9 party to establish that a genuine issue of material fact exists. Matsushita Elec. Indus. Co. v. 10 Zenith Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, 11 the opposing party need not establish a material issue of fact conclusively in its favor. It is 12 sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the 13 parties’ differing versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors 14 Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). However, the nonmoving party “may not rely on 15 denials in the pleadings but must produce specific evidence, through affidavits or admissible 16 discovery material, to show that the dispute exists,” Bhan v. NME Hosps., Inc., 929 F.2d 1404 , 17 1409 (9th Cir. 1991), and “must do more than simply show that there is some metaphysical 18 doubt as to the material facts,” Orr v. Bank of Am., 285 F.3d 764, 783 (9th Cir. 2002). “The 19 mere existence of a scintilla of evidence in support of the plaintiff’s position will be 20 insufficient.” Anderson, 477 U.S. at 252 . In other words, the nonmoving party cannot avoid 21 summary judgment by relying solely on conclusory allegations that are unsupported by factual 22 data. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposition must go 23 beyond the assertions and allegations of the pleadings and set forth specific facts by producing 24 competent evidence that shows a genuine issue for trial. See Celotex Corp., 477 U.S. at 324 . [25] 1 At summary judgment, a court’s function is not to weigh the evidence and determine the 2 truth but to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249 . 3 The evidence of the nonmovant is “to be believed, and all justifiable inferences are to be drawn 4 in his favor.” Id. at 255 . But if the evidence of the nonmoving party is merely colorable or is 5 not significantly probative, summary judgment may be granted. See id. at 249–50. 6 III. DISCUSSION 7 Plaintiff pled five causes of action in his SAC: (1) False Imprisonment/False Arrest; (2) 8 Defamation; (3) Negligence; (4) IIED; and (5) Violation of 42 U.S.C. § 1983 . (See generally 9 SAC). Plaintiff moves for partial summary judgment as to liability on his Section 1983 claim 10 against Pavlov and South Point, false imprisonment claim against all Defendants, defamation 11 claim against South Point, and assault and battery claim against South Point. (Pl.’s MPSJ 1:19– 12 24, ECF No. 49). South Point moves for summary judgment on the following claims: false 13 imprisonment/false arrest; defamation; assault and battery; IIED; and violation of Section 1983. 14 (See generally South Point’s Mot. Summ. J. (“MSJ”), ECF No. 68). The LVMPD Defendants 15 move for summary judgment on false imprisonment/false arrest; IIED; and violation of Section 16 1983. (See generally LVMPD Defs.’ MSJ, ECF No. 67). 17 The Court begins its discussion by addressing the Parties arguments regarding an assault 18 and battery claim. Plaintiff requests summary judgment on an assault and battery cause of 19 action and South Point filed a cross motion for summary judgment on this claim as well. But 20 Plaintiff did not plead a civil cause of action for assault and battery in the SAC, nor any 21 iteration of his complaint.3 (See generally SAC). It is impermissible to add a new claim for the [22] 23 3 Plaintiff’s “Causes of Action” section of his SAC pleads five causes of action, none of which are a claim for assault and battery. (See SAC at 8–11). References to battery can be found in the “Jurisdictional and Common 24 Allegations” section of Plaintiff’s SAC, where he adds three named Defendants to the action asserting generally that “they were material actors in in seizing (imprisoning) Plaintiff and battering Plaintiff.” (Id. 2:19–20). 25 Plaintiff also adds another named Defendant who is described as being involved with the “detention, false imprisonment, battery and other torts committed against the Plaintiff.” (Id. 24–25). But the Parties stipulated to the dismissal of each of those Defendants from this action. (See Order Granting Stipulation for Dismissal, ECF 1 first time at the summary judgment stage. See Echlin v. PeaceHealth, 887 F.3d 967 , 977–78 2 (9th Cir. 2018). As such, the Court will not address arguments made regarding an assault and 3 battery claim pled for the first time in Plaintiff’s Motion for Partial Summary Judgment. 4 Moreover, neither Plaintiff nor any Defendant addresses the negligence cause of action in their 5 briefing. But in the interest of judicial economy and because the parties will not be unfairly 6 prejudiced, the Court addresses the merits of the negligence claim in this Order. 7 A. Preliminary Matters 8 Before the Court addresses the merits of the Parties’ Motions, it first takes up Plaintiff’s 9 preliminary arguments. 10 1. Evidentiary Objection 11 First, Plaintiff contends that South Point’s expert report prepared by a South Point 12 security officer is inadmissible hearsay. (Pl.’s MPSJ, 11:16–20); (See generally Initial Expert 13 Report of Robert Garnder, Ex. C to South Point’s Resp., ECF No. 63-3). “[F]or an expert 14 opinion to be considered on summary judgment, it must be accompanied by a proper affidavit 15 or deposition testimony; courts in the Ninth Circuit have routinely held that unsworn expert 16 reports are inadmissible.” FNBN-RESCON LLC v. Ritter, 2014 WL 979930 , at *5 (D. Nev. 17 Mar. 12 , 2014) (citation and internal quotations omitted) (collecting cases); see also Fed. R. 18 Civ. P. 56(e); Fed. R. Evid. 603.4 Defendant South Point’s Initial Expert Report is not 19 accompanied by a proper affidavit nor deposition testimony and is unsworn. As such, the Court 20 cannot consider the Initial Expert Report at this stage. [22] 23 No. 44). The rest of Plaintiff’s SAC is devoid of any reference to battery and a civil claim for assault and battery cannot be found in the SAC. The Court acknowledges that Plaintiff’s negligence claim, however, arises out of a 24 violation of criminal false imprisonment and criminal assault and battery which the Court discusses in more depth below. Accordingly, Plaintiff failed to properly plead a cause of action for civil assault and battery. 25 4 A handful of Circuits have likewise held that unsworn expert reports are inadmissible. See e.g., Fowle v. C & C Cola, 868 F.2d 59, 67 (3d Cir. 1989); Provident Life and Accident Ins. Co. v. Goel, 274 F.3d 984, 1000 (5th Cir. 2001); Wittmer v. Peters, 87 F.3d 916, 917 (7th Cir.1996). 1 2. Security Camera Video 2 Second, Plaintiff contends that the events depicted on security camera video footage 3 provided by Plaintiff in Plaintiff’s Exhibit 2 are conclusively established and cannot be 4 contradicted by any facts that the Defendants attempt to raise. (Pl.’s MPSJ 9:4–5). At the 5 summary judgment stage, courts must “view[] the facts in the light depicted by the videotape.” 6 Scott v. Harris, 550 U.S. 372, 372, 374 (2007). While events appearing on an authenticated 7 video are “true,” that does not mean that a party is foreclosed from presenting evidence to 8 present possible justifications for one’s actions. See People for the Ethical Treatment of 9 Animals v. Bobby Berosini, Ltd., 111 Nev. 615, 622 (1995) (“The ‘distribution and showing’ of 10 the videotape in no way interferes with [defendant’s] right to present possible justifications for 11 his actions. As the distributors of the tape had the right to show this true tape, so [defendant] 12 had the right to explain his actions on the tape.”). 13 Plaintiff argues that when considering the nature of the video evidence, the indisputable 14 facts show that Defendant South Point constructed a sham report to support its false narrative of 15 events. (Pl.’s MPSJ 9:25–26). Here, the video can only be used to conclusively depict what is 16 objectively seen on screen. And while the Court must view the facts in the light depicted by the 17 videotape, summary judgment is appropriate only if, taking the evidence and all reasonable 18 inferences in the light most favorable to the non-moving party, there are no genuine issues of 19 material fact, and the moving party is entitled to judgment as a matter of law. 20 The video Plaintiff provides is snippets of him inside South Point leading up to the 21 incident where Plaintiff and Defendants had an altercation in the casino. (Security Video at 22 1:35:40, Ex. 2 to Pl.’s MPSJ, manual filing). However, the Parties are permitted to explain 23 their actions within the video and respond to Plaintiff’s position that the video conclusively 24 proves that South Point created a sham incident report. The Parties’ explanations and 25 considering the entire video footage as seen in South Point’s Exhibit A establish that Plaintiff is 1 not entitled to summary judgment, but Defendants are. By way of example, Plaintiff explains 2 that he was “violently shoved” and “attacked” by numerous security officers. (Pl.’s MPSJ 3 10:18–25). But South Point explains that Plaintiff had been non-compliant with the mask 4 mandate and refused to leave the premises and was aggressive and threatening towards the 5 security officers which led to them seizing Plaintiff all of which is evident from the security 6 footage provided by South Point. (South Point’s Resp. 6:22–28, ECF No. 63); (See generally 7 South Point Security Camera Footage, Ex. A to South Point’s Resp.). Thus, the video fails to 8 establish that summary judgment is appropriate for Plaintiff. 9 3. Respondent Superior as to South Point 10 Lastly, Plaintiff argues that the actions of South Point’s employees are coextensively the 11 actions of South Point for purposes of this litigation through respondeat superior. (Pl.’s MPSJ 12 11:10–11). Defendant South Point provides no response to this argument in either its Response 13 to Plaintiff’s Motion for Partial Summary Judgment or in its own Motion for Summary 14 Judgment. As such, the Court finds that this point is undisputed and accepts Plaintiff’s position 15 as true. 16 B. 42 U.S.C. § 1983 17 The Court now turns to the merits of the Parties Motions. Plaintiff moves for partial 18 summary judgment as to liability on his claim for Defendants violation of 42 U.S.C. § 1983 . 19 Defendant South Point and the LVMPD Defendants each move for summary judgment on this 20 claim. To sustain an action under Section 1983, a plaintiff must show: “(1) that the conduct 21 complained of was committed by a person acting under color of state law; and (2) that the 22 conduct deprived the plaintiff of a federal constitutional or statutory right.” Wood v. Ostrander, [23] 879 F.2d 583, 587 (9th Cir. 1989). The Parties do not dispute the first element, so the only 24 question for the Court to address is whether summary judgment is appropriate for any party as [25] 1 to the second element. (See generally Pl.’s MPSJ); (See generally South Point’s MSJ); (See 2 generally LVMPD Defs.’ MSJ). 3 1. Plaintiff’s Motion 4 Plaintiff argues that neither South Point nor Pavlov had the legal authority to seize him 5 and thus deprived him of a constitutional right. (Pl.’s MPSJ 12:14–15). Whether Plaintiff was 6 seized is not at issue.5 The issue is whether Plaintiff’s seizure by Defendants was reasonable 7 under the Fourth Amendment. The Court first addresses the reasonableness of South Point’s 8 seizure. 9 a. Defendant South Point 10 As mentioned above, South Point does not dispute that it acted under the color of state 11 law, thus the Court need only address the second prong of the Section 1983 analysis.6 (See 12 generally South Point’s MSJ); (See generally South Point’s Resp.). South Point seized Plaintiff 13 for trespassing in violation of NRS § 207.200 and for exhibiting aggressive behavior towards it 14 security officers. (See generally South Point Security Camera Footage, Ex. A to South Point’s 15 Resp.). Plaintiff argues that this seizure violated his Fourth Amendment rights because it was 16 not supported by probable cause or reasonable suspicion. See United States v. Thornton, 710 17 F.2d 513, 515 (9th Cir. 1983). The Fourth Amendment bars only those searches and seizures 18 that are unreasonable. Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602, 613 (1989). 19 In certain instances, a security officer, like the ones at South Point, can seize an individual and 20 not violate their constitutional right to unreasonable seizure. One such instance is when a 21 security officer conducts a citizen’s arrest. NRS § 171.126. Nevada’s citizen’s arrest statute [23] 5 It is undisputed that Plaintiff was seized, but Defendants dispute who seized Plaintiff. South Point asserts that 24 LVMPD seized Plaintiff while LVMPD maintains that South Point seized Plaintiff. (South Point’s MSJ 4:3, ECF No. 68); (LVMPD Defts.’ MSJ 2:13). However, it is clear from the record that both Defendants seized Plaintiff 25 which is discussed in more detail below. 6 Even if the Parties did dispute whether South Point acted under the color of state law, the Court would find that the first prong is met. See generally Tsao v. Desert Palace, Inc., 698 F.3d 1128 (9th Cir. 2012). 1 authorizes citizen’s arrests for misdemeanors only when a crime has in fact been committed. 2 Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1150 (9th Cir. 2012) (citing NRS § 171.126; 3 Atwater v. City of Lago Vista, 532 U.S. 318, 352 (2001)). “Misdemeanor trespassing, as 4 defined in NRS § 207.200, is considered a public offense.” Id. at 698 F.3d 1132 n.4 (internal 5 citations omitted). 6 Plaintiff argues that summary judgment is warranted because South Point lacked the 7 legal authority to seize Plaintiff to issue a trespass warning because South Point lacked 8 probable cause and/or reasonable suspicion and ultimately did not conduct a citizen’s arrest of 9 Plaintiff. (Pl.’s MPSJ 12:14–15); (Pl.’s Reply 2:21–23, ECF No. 72). Indeed, South Point’s 10 authorized employee testifies that Plaintiff was not arrested. (Lopez Dep. 42:12, Ex. 7 to Pl.’s 11 PMSJ, ECF No. 49-7). However, “[a]n arrest—or, to use the Fourth Amendment’s 12 terminology, a “seizure”—occurs when a law enforcement officer, through coercion, physical 13 force[,] or a show of authority, in some way restricts the liberty of a person.” United States v. 14 Washington, 387 F.3d 1060, 1069 (9th Cir. 2004) (quotation omitted). “A person’s liberty is 15 restrained when, ‘taking into account all of the circumstances surrounding the encounter, the 16 police conduct would have communicated to a reasonable person that he was not at liberty to 17 ignore the police presence and go about his business.’” Id. (quoting Florida v. Bostick, 501 U.S. 18 429, 437 (1991)). Here, South Point handcuffed Plaintiff, walked him to a holding cell far 19 away from the casino floor, searched him, and made him sit in the cell until LVMPD arrived. 20 Under these circumstances, the officers restricted Plaintiff’s liberty and seized him, i.e. a 21 citizen’s arrest occurred despite South Point’s contention that it did not arrest Plaintiff. 22 Accordingly, South Point needed probable cause to seize Plaintiff. 23 Plaintiff argues South Point did not have probable cause to seize Plaintiff, but the record 24 proves otherwise. “Probable cause exists when the [officers] know ‘reasonably trustworthy 25 information sufficient to warrant a prudent person in believing that the accused had committed 1 or was committing an offense.’” United States v. Del Vizo, 918 F.2d 821, 825 (9th Cir. 1990) 2 (quoting United States v. Delgadillo–Velasquez, 856 F.2d 1292, 1296 (9th Cir. 1988)). 3 Moreover, the Supreme Court has held that probable cause is “not a high bar” and depends on 4 the “totality of the circumstances.” See District of Columbia v. Wesby, 583 U.S. 48, 57 (2018). 5 Plaintiff is seen on camera failing to abide by South Point’s mask mandate, is asked to leave, 6 refuses to leave, and is then involved in a physical altercation with South Point security. (See 7 generally South Point Security Camera Footage, Ex. A to South Point’s Resp.); (See generally 8 Hoch Decl., Ex. 1 to Pl.’s MPSJ). A sufficient warning against trespassing, within the meaning 9 of NRS 207.200 requires “the owner or occupant of the land or building making an oral or 10 written demand to any guest to vacate the land or building.” NRS 207.200. Here, South Point 11 security made an oral demand for Plaintiff to leave the building and Plaintiff did not do so 12 amounting to a sufficient warning by South Point and a trespass by Plaintiff. (See Hoch Decl. ¶ 13 11, Ex. 1 to Pl.’s MPSJ). Based on the totality of the circumstances, South Point had probable 14 cause to seize Plaintiff because Plaintiff had committed or was committing the crime of 15 trespass. Thus, Plaintiff fails to meet his burden of establishing the absence of a genuine 16 dispute of material fact. Accordingly, Plaintiff’s Motion for Partial Summary Judgment as to 17 his Section 1983 claim against Defendant South Point is DENIED. 18 b. Defendant Pavlov 19 The Court now turns to address Plaintiff’s Motion as it relates to Pavlov. The Supreme 20 Court has identified three distinct types of police-citizen encounters, each requiring a different 21 level of suspicion to be deemed reasonable under the Fourth Amendment: (1) arrest, which 22 must be supported by probable cause, Beck v. Ohio, 379 U.S. 89 (1964); (2) brief investigatory 23 stops (“Terry stops”), which must be supported by reasonable articulable suspicion of criminal 24 activity, Terry v. Ohio, 392 U.S. 1 (1968); and (3) consensual encounters between police and 25 citizens, which require no objective justification. 1 Plaintiff argues that Pavlov did not have the legal authority, whether it be probable cause 2 or reasonable suspicion, to detain Plaintiff and thus Plaintiff’s detention was unconstitutional. 3 (Pl.’s MPSJ 12:14–15). Plaintiff points to Pavlov’s deposition in which he testified that his 4 sole reason to detain Plaintiff was to issue a trespass warning. (Pavlov Dep. 36:10–25, Ex. C to 5 LVMPD Defs.’ Resp.). Plaintiff concludes that by Pavlov’s admission, the detention of 6 Plaintiff at a time when he would otherwise be released is not based on probable cause nor 7 reasonable suspicion. (Pl.’s MPSJ 13:11–14). However, Pavlov responded to a call from South 8 Point alerting him that Plaintiff had trespassed on their property which establishes that Pavlov 9 had legal authority to seize Plaintiff. (Pavlov Dep. at 53–54, Ex. C to LVMPD Defs.’ MSJ). 10 Thus, Plaintiff’s arguments and offering of evidence fail to establish the absence of a genuine 11 dispute of material fact. As such, Plaintiff’s Motion for Partial Summary Judgment as to his 12 Section 1983 claim against Pavlov is DENIED. 13 2. Defendant South Point’s Motion 14 Because the Court finds that South Point had the legal authority to seize Plaintiff and 15 denied Plaintiff’s Motion for Partial Summary Judgment for his Section 1983 claim, the Court 16 GRANTS South Point’s Motion for Summary Judgment for this claim. 17 3. The LVMPD Defendants’ Motion 18 The LVMPD Defendants move for summary judgment on Plaintiff’s Section 1983 19 claim. Defendants Pavlov and LVMPD do not dispute that they acted under the color of state 20 law. As a result, the only questions are whether Pavlov violated Plaintiff’s rights, whether 21 Pavlov is entitled to qualified immunity, and whether LVMPD can be held liable for any 22 violations through Monell liability. 23 a. Whether a Violation of Rights Occurred 24 The LVMPD Defendants argue that their Motion for Summary Judgment should be 25 granted for the same reasons they argued that Plaintiff’s Motion for Partial Summary Judgment 1 should be denied. Pavlov presents two arguments for the Court to consider as to the Section 2 1983 claim. First, he argues that a reasonable jury could conclude that he did not seize 3 Plaintiff. (LVMPD Defs.’ MSJ 5:12–13). And second, in the alternative to his first argument, 4 he contends that Defendant Pavlov had reasonable suspicion to encounter Plaintiff. (Id. 7:4–5). 5 Pavlov argues that a reasonable jury could conclude that he did not seize Plaintiff. 6 (LVMPD Defs.’ MSJ 5:12–13). To reiterate, “[a] seizure occurs when a law enforcement 7 officer, through coercion, ‘physical force[,] or a show of authority, in some way restricts the 8 liberty of a person.’” Washington, 387 F.3d at 1068 (citing Chan–Jimenez, 125 F.3d at 1325). 9 “A person’s liberty is restrained when, ‘taking into account all of the circumstances 10 surrounding the encounter, the police conduct would have communicated to a reasonable 11 person that he was not at liberty to ignore the police presence and go about his business.’” Id. 12 (citing Bostick, 501 U.S. at 437). “[A] seizure does not occur simply because a police officer 13 approaches an individual and asks a few questions.” Bostick, 501 U.S. at 434. A seizure 14 through a show of authority occurs where “if, in view of all the circumstances surrounding the 15 incident, a reasonable person would. . . believe that he [is] not free to leave.” California v. 16 Hodari D., 499 U.S. 621, 626 (1991) (quotation omitted). An officer may briefly seize a 17 suspect to maintain the status quo while investigating criminal activity. Michigan v. Summers, [18] 452 U.S. 692, 698 (1981) (citation omitted) (emphasis added). 19 The LVMPD Defendants argue that while it is true that Plaintiff was seized by South 20 Point and that Plaintiff reasonably believed that he was not free to leave, that belief was not a 21 result of Pavlov’s actions. (LVMPD Defs.’ MSJ 6:19–20). They further argue that Pavlov’s 22 arrival on scene “changed nothing”—or in other words, the status quo was maintained— 23 because South Point continued custody over Plaintiff. (Id. 6:20–22). Essentially, the LVMPD 24 Defendants argue that because Plaintiff was previously seized by South Point, Pavlov did not 25 participate in Plaintiff’s seizure by issuing the misdemeanor trespass warning. (Id.). 1 The Court disagrees. When an officer, as is the case here, briefly detains a suspect to 2 maintain the status quo while investigating criminal activity, a seizure has occurred. Summers, [3] 452 U.S. at 698 . Here, Pavlov arrives on the scene to respond to a potential trespass. (Pavlov 4 Dep. at 53–54, Ex. C to LVMPD Defs.’ MSJ). He assesses whether Plaintiff is a threat to 5 himself and others and determines that the handcuffs South Point placed on Plaintiff can be 6 removed. (Id. 30:2–4). Pavlov then decides that Plaintiff should receive a misdemeanor 7 trespass warning. (Id. 30:9–12). He testifies that Plaintiff is being detained so that he can issue 8 the misdemeanor trespass warning which establishes that Pavlov participated in Plaintiff’s 9 seizure. (Id. 36:10–25, Ex. C to LVMPD Defs.’ Resp.). Moreover, despite the fact that Pavlov 10 removed the handcuffs South Point had placed on Plaintiff, a reasonable person would still not 11 feel “at liberty to ignore [Pavlov’s] presence and go about his business” because Plaintiff was 12 still being held in a cell and Pavlov was issuing a citation to Plaintiff. (Pavlov BWC Footage at 13 2:14, Ex. B to LVMPD Defs.’ MSJ, manual filing); Bostick, 501 U.S. at 437. Thus, based on 14 the totality of the circumstances and Pavlov’s own testimony Defendant has failed to meet his 15 burden of establishing he did not seize Plaintiff. 16 Because Pavlov seized Plaintiff, the seizure must be considered reasonable as to not run 17 afoul to the Fourth Amendment. United States v. Enslin, 327 F.3d 788, 795 (9th Cir. 2003) 18 (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975) (“The Fourth Amendment 19 applies to all seizures of the person, including seizures that involve only a brief detention short 20 of traditional arrest.”)). An investigative detention, like the one here, require less than probable 21 cause. See generally Terry v. Ohio, 392 U.S. 1 (1968). Police must have a reasonable suspicion 22 supported by articulable facts of criminal activity or involvement in a completed crime in order 23 for an investigative detention to be considered reasonable under the Fourth Amendment. Id. at 24 21. The standard for reasonable suspicion is low, requiring merely that an officer “be able to 25 articulate more than a. . . ‘hunch’ of criminal activity.” Illinois v. Wardlow, 528 U.S. 119 , 124 1 (2000) (quotation omitted). Moreover, “an investigative detention must be temporary and last 2 no longer than is necessary to effectuate the purpose of the stop.” Florida. v. Royer, 460 U.S. 3 491, 500 (1983). “Similarly, the investigative methods employed should be the least intrusive 4 means reasonably available to verify or dispel the officer’s suspicion in a short period of time.” 5 Id. (citations omitted). Consequently, to determine whether a seizure is unreasonable, the Court 6 considers both “whether the officer’s action was justified at its inception, and whether it was 7 reasonably related in scope to the circumstances which justified the interference in the first 8 place.” Terry, 392 U.S. at 19–20. 9 The LVMPD Defendants meet their initial burden of establishing that Pavlov had 10 reasonable suspicion to conduct an investigative detention of Plaintiff. The LVMPD 11 Defendants explain that Pavlov responded to South Point to issue a misdemeanor trespass 12 warning against Plaintiff. (Pavlov Dep. at 53–54, Ex. C to LVMPD Defs.’ MSJ). When Pavlov 13 arrived at the scene, Plaintiff was “aggressive” and was “being aggressive with [Pavlov].” (Id. 14 30:2–4, Ex. C to LVMPD Defs.’ MSJ). This is further evidenced in Pavlov’s body worn 15 camera (“BWC”) footage, where, upon contacting Plaintiff, Pavlov attempts to calm Plaintiff as 16 he talks over Pavlov. (Pavlov BWC Footage at 2:14, Ex. B to LVMPD Defs.’ MSJ, manual 17 filing). Plaintiff agrees to speak calmly and to not interrupt Pavlov, but then proceeds to talk 18 over him again. (Id. at 2:45, Ex. B to LVMPD Defs.’ MSJ). Plaintiff continues to talk over 19 Pavlov, including tossing expletives at South Point security personnel, as he explains the 20 situation further. (Id. at 3:00, Ex. B to LVMPD Defs.’ MSJ). Therefore, between the call 21 Pavlov received regarding Plaintiff’s trespass and Plaintiff’s actions towards Pavlov when he 22 arrived at South Point the Court finds that Pavlov could articulate more than just a hunch of 23 criminal activity. Thus, the LVMPD Defendants have met their initial burden of negating an 24 essential element of Plaintiff’s Section 1983 claim. [25] 1 Now the Court turns to whether Plaintiff can establish that a genuine dispute of material 2 fact exists. As discussed above, Pavlov admits that his reason for detaining Plaintiff was to 3 issue a trespass warning and he assumed that South Point had already read the trespass card to 4 Plaintiff. (Pavlov Dep. 30:9–12, Ex. C to LVMPD Defs.’ MSJ). But Plaintiff maintains that he 5 was not read the trespass card until Pavlov arrived. (Hoch Decl. ¶ 27–29, Ex. 1 to Pl.’s MPSJ). 6 Plaintiff thus argues that, beyond the mere issuing of the warning, Pavlov lacked the legal 7 authority to maintain Plaintiff’s seizure because it was not evident at the time of Pavlov’s 8 arrival that Plaintiff had committed the crime of trespass. (Pl.’s MPSJ 13:3–18). 9 Indeed, Pavlov testified that he did not formally investigate whether Plaintiff had 10 committed a crime. (Pavlov Dep. 33:14–16, Ex. C to LVMPD Defs.’ Resp.). Moreover, Pavlov 11 admits that when he arrived on the scene, Plaintiff had not yet been read a trespass card. (Id. 12 30:9–12, Ex. C to LVMPD Defs.’ Resp). But as previously discussed, a sufficient warning 13 against trespassing, within the meaning of NRS 207.200 requires “the owner or occupant of the 14 land or building making an oral or written demand to any guest to vacate the land or building.” 15 NRS 207.200. Here, South Point security made an oral demand for Plaintiff to leave the 16 building and Plaintiff did not do so amounting to a sufficient warning. (See Hoch Decl. ¶ 11, 17 Ex. 1 to Pl.’s MPSJ). The Court must look to the objective evidence of what Defendant Pavlov 18 knew at the time, which is that Pavlov responded to a call from South Point alleging Plaintiff 19 had trespassed because he was asked to leave South Point and did not, arrived at the scene to an 20 aggressive Plaintiff, and therefore issued a misdemeanor trespass warning. Reynaga Hernandez 21 v. Skinner, 969 F.3d 930, 940 (9th Cir. 2020) (explaining that whether a Fourth Amendment 22 violation occurred is an objective inquiry, not subjective). The Court finds that Pavlov’s 23 actions were justified at their inception, and that they were reasonably related in scope to the 24 circumstances which justified the interference in the first place. See Terry, 392 U.S. at 19–20. 25 Accordingly, Plaintiff’s offering of evidence and arguments fails to establish that there exists a 1 genuine dispute of material fact as to whether Defendant Pavlov had the legal authority to seize 2 Plaintiff. 3 b. Qualified Immunity 4 Lastly, and in the alternative, the LVMPD Defendants argue that Pavlov is entitled to 5 qualified immunity because Pavlov did not violate Plaintiff’s constitutional rights, and if 6 Pavlov’s actions do amount to a constitutional violation, the violation was not clearly 7 established. (See LVMPD Defs.’ MSJ at 10–16). “Qualified immunity gives government 8 officials breathing room to make reasonable but mistaken judgments about open legal 9 questions. When properly applied, it protects ‘all but the plainly incompetent or those who 10 knowingly violate the law.’” Ashcroft v. al-Kidd, 563 U.S. 731 , 743 (2011) (quoting Malley v. 11 Briggs, 475 U.S. 335, 341 (1986)); see also Pearson v. Callahan, 555 U.S. 223, 231 (2009) 12 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)) (“The doctrine of qualified immunity 13 protects government officials ‘from liability for civil damages insofar as their conduct does not 14 violate clearly established statutory or constitutional rights of which a reasonable person would 15 have known.’”). To overcome a claim of immunity, a plaintiff must plead “facts showing (1) 16 that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly 17 established’ at the time of the challenged conduct.” al-Kidd, 563 U.S. at 735. 18 As discussed above, there is not a genuine dispute of material fact as to whether Pavlov 19 violated Plaintiff’s constitutional right to be free from unreasonable seizure, therefore negating 20 prong one of the qualified immunity analysis. Thus, Pavlov is entitled to qualified immunity. 21 c. Monell Liability 22 Plaintiff seeks to hold LVMPD liable for Pavlov’s actions under the theory of Monell 23 Liability. Pursuant to Monell, municipalities can be sued directly under Section 1983 for 24 violations of constitutional rights. See Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 25 658, 690 (1978). But here, there is not a genuine dispute of material fact as to whether Pavlov 1 violated Plaintiff’s Fourth Amendment rights. Thus, Plaintiff cannot succeed on his Monell 2 claim against LVMPD. 3 In conclusion, the LVMPD Defendants’ Motion for Summary Judgment as to Plaintiff’s 4 Section 1983 claim is GRANTED because there exists no genuine dispute of material fact as to 5 (1) whether Pavlov had legal authority to detain Plaintiff, (2) whether Pavlov is entitled to 6 qualified immunity; and (3) whether LVMPD is liable for Defendant Pavlov’s action through 7 Monell liability. 8 C. False Imprisonment 9 Plaintiff moves for partial summary judgment as to liability for his false imprisonment 10 claim against South Point and Pavlov. (Pl.’s MPSJ 17:8–19:7). South Point and the LVMPD 11 Defendants both filed Motions for Summary Judgment on this claim, arguing that they had 12 legal authority to seize Plaintiff which negates his claim for false imprisonment. 13 False imprisonment occurs when a person is detained under force or threat of force 14 without legal justification. Lerner Shops v. Marin, 423 P.2d 398, 400 (Nev. 1967). “To 15 establish false imprisonment of which false arrest is an integral part, it is only necessary to 16 prove that the [plaintiff was] restrained of his liberty under the probable imminence of force 17 without any legal cause or justification.” Marschall v. City of Carson, 464 P.2d 494, 498 (Nev. 18 1970). Legal cause thus bars false imprisonment. Grover v. Clark Cnty., 625 P.2d 85, 86 (Nev. 19 1981). 20 As discussed above, both South Point and Pavlov had the legal authority to seize 21 Plaintiff. Because legal cause bars success on a false imprisonment claim, Plaintiff cannot 22 succeed on his Motion for Partial Summary Judgment as to this claim against Defendants. 23 Accordingly, Plaintiff’s Motion for Partial Summary Judgment is DENIED as to this claim. 24 South Point’s Motion for Summary Judgment is GRANTED. The LVMPD Defendants’ 25 Motion for Summary Judgment is likewise GRANTED. 1 D. Defamation 2 Plaintiff moves for partial summary judgment as to liability for his defamation claim 3 against South Point. (Pl.’s MPSJ 20:15–17). South Point moves for summary judgment on this 4 claim. (South Point’s MSJ 5:14–6:2). 5 To succeed on a claim for defamation in Nevada, a plaintiff must demonstrate: (1) a 6 false and defamatory statement of fact by the defendant concerning the plaintiff; (2) an 7 unprivileged publication to a third person; (3) fault, amounting to at least negligence; and (4) 8 actual or presumed damages.” Pope v. Motel 6, 114 P.3d 277, 282 (Nev. 2005). Because 9 Nevada adopts defamation by pantomime as an actionable intentional tort, the first element of a 10 defamation claim can be satisfied by conduct as well as words or a combination of both. K11 Mart Corp. v. Washington, 866 P.2d 274, 276, 282 (Nev. 1993); see Tsao v. Desert Palace, 12 Inc., 698 F.3d 1128, 1148 (9th Cir. 2012) (explaining that the imputation of wrongdoing by 13 pantomime, i.e. walking a person in public in handcuffs, if communicated to a third party, is 14 unquestionably slander per se). However, the clear defense to defamation in this case turns on 15 whether there was in fact a legal basis to detain Plaintiff. Id. at 1149 . 16 As mentioned throughout this Order, South Point had the legal authority to seize 17 Plaintiff which establishes that South Point has a clear defense to defamation in this case. 18 Thus, Plaintiff’s Motion for Partial Summary Judgment is DENIED as to this claim. South 19 Point’s Motion for Summary Judgment for the defamation claim is GRANTED. 20 E. IIED 21 South Point and the LVMPD Defendants move for summary judgment on Plaintiff’s 22 IIED claim. Plaintiff does not move for summary judgment on this claim. 23 To prevail on a claim for IIED under Nevada law, a plaintiff must show: “(1) extreme 24 and outrageous conduct with either the intention of, or reckless disregard for, causing emotional 25 distress (2) the plaintiff’s having suffered severe or extreme emotional distress, and (3) actual 1 or proximate causation.” Olivero v. Lowe, 995 P.2d 1023, 1025 (Nev. 2000). The Nevada 2 Supreme Court has defined “extreme and outrageous conduct” as that which is “outside all 3 possible bounds of decency” and is regarded as “utterly intolerable in a civilized community.” 4 Maduike v. Agency Rent-A-Car, 953 P.2d 24, 26 (Nev. 1998). However, “persons must 5 necessarily be expected and required to be hardened to . . . occasional acts that are definitely 6 inconsiderate and unkind.” Id. (omission and quotation omitted); see also Restatement (Second) 7 of Torts § 46 cmt. d (“The liability clearly does not extend to mere insults, indignities, threats, 8 annoyances, petty oppressions, or other trivialities.”). “The Court determines whether the 9 defendant’s conduct may be regarded as extreme and outrageous so as to permit recovery, but, 10 where reasonable people may differ, the jury determines whether the conduct was extreme and 11 outrageous enough to result in liability.” Chehade Refai v. Lazaro, 614 F. Supp. 2d 1103 , 1121 12 (D. Nev. 2009). 13 Defendants’ Motions for Summary Judgment present substantially similar arguments for 14 why summary judgment should be granted in their favor as to Plaintiff’s IIED claim. As for the 15 first element, South Point contends that there is no evidence that Plaintiff’s seizure for alleged 16 criminal conduct is extreme and outrageous. (South Point’s MSJ 6:8–9). Similarly, the 17 LVMPD Defendants argue that there is no evidence that their conduct in responding to a call 18 for service and issuing a written trespass warning is extreme and outrageous. (LVMPD Defs.’ 19 MSJ 19:25–20:5). Second, Defendants argue that there is no evidence that they intended to 20 cause, or had a reckless disregard for causing, Plaintiff emotional distress. (South Point’s MSJ 21 6:8–12); (LVMPD Defs.’ MSJ 20:7–9). Lastly, they assert that there is no evidence that 22 demonstrates Plaintiff actually suffered emotional distress subsequent to this incident. (South 23 Point’s MSJ 6:12–16); (LVMPD Defs.’ MSJ 20:9–10). 24 The Nevada Supreme Court has defined “extreme and outrageous conduct” as that which 25 is “outside all possible bounds of decency” and is regarded as “utterly intolerable in a civilized 1 community.” Maduike, 953 P.2d at 26 . Moreover, a police officer’s conduct may rise to the 2 level of extreme and outrageous when he engages in an “extreme abuse” of his position. 3 Restatement (Second) of Torts § 46, cmts. South Point’s security officers and LVMPD, as a 4 law enforcement agency, are certainly expected to monitor and respond to criminal activity. 5 Thus, the fact that South Point had the legal authority to seize Plaintiff and LVMPD responded 6 to a call for service, also had the legal authority to seize Plaintiff, and issued a written warning 7 is not enough to constitute “extreme and outrageous conduct” for purposes of an IIED claim. 8 See e.g. Cornel v. Hawaii, 501 F. Supp. 3d 927 (D. Haw. 2020), aff’d, 37 F.4th 527 (9th Cir. 9 2022) (“But given that [plaintiff’s] arrest was valid and lawful, nothing can be considered 10 “outrageous” for purposes of IIED.”). Furthermore, because Pavlov had legal authority to seize 11 Plaintiff it cannot be said that he engaged in an “extreme abuse” of his position. Thus, 12 Defendants have met their initial burden of negating an essential element of Plaintiff’s IIED 13 claim. 14 Plaintiff cannot meet his burden of establishing a genuine dispute of material fact 15 because, as discussed above, Plaintiff did not succeed in establishing a genuine dispute of 16 material fact as to whether Defendants had legal authority to seize him which is the basis for his 17 IIED claim. Accordingly, South Point’s Motion for Summary Judgment for IIED is 18 GRANTED. Likewise, the LVMPD Defendants’ Motion for Summary Judgment as to this 19 claim is also GRANTED. 20 F. Negligence 21 Plaintiff asserts a claim for negligence per se against the Defendants for violation of 22 NRS 200.460, criminal false imprisonment, and NRS 200.481, criminal assault and battery. 23 (See SAC ¶52–58). Plaintiff ultimately bases the negligence claim on his seizure. (See id.). 24 But the claim cannot survive summary judgment because the seizure was based on probable 25 cause and thus did not violate NRS 200.460 nor NRS 200.481. Scotti v. City of Phoenix, 609 F. 1 || App’x 386, 389 (9th Cir. 2015) (independent probable cause negates state law negligence 2 |/claims). Accordingly, summary judgment is appropriate for Defendants on this claim. 3 |}IV. CONCLUSION 4 IT IS HEREBY ORDERED that Plaintiff's Motion for Partial Summary Judgment, 5 (ECF No. 49), is DENIED. 6 IT IS FURTHER ORDERED that Defendant South Point’s Motion for Summary 7 || Judgment, (ECF No. 68), is GRANTED. 8 IT IS FURTHER ORDERED that the LVMPD Defendants’ Motion for Summary 9 || Judgment, (ECF No. 67), is GRANTED. 10 IT IS FURTHER ORDERED that Plaintiff's Motion in Limine, (ECF No. 45), is 11 ||} DENIED. 12 IT IS FURTHER ORDERED that Plaintiff's Motion for Leave, (ECF No. 57), is 13 ||} DENIED. 14 The Clerk of Court is kindly directed to enter judgment in favor of Defendants and close 15 || the case. 16 DATED this 24 _ day of February, 2025. 17 Ly, Yj, 18 J VI 19 Gloria M. Re rarro, District Judge United States District Court [25] Page 23 of 23