Opinion
2:18-cv-00169-RFB-BNW
10-13-2023
TERRELL DESHON KEMP, SR., Plaintiff, v. LAS VEGAS METROPOLITAN POLICE DEPARTMENT; JAIL DIRECTOR CAPTAIN SCHMIDT, in her individual and official capacities; CORRECTIONAL OFFICER HUGH HARDY, #6000; NAPHCARE, INC., a Foreign Corporation; DIRECTOR OF NURSING, ASHLEY KOMASCAR, in her individual and official capacities; LARRY WILLIAMSON M.D., in his individual and official capacities, Defendants. Document Bates No Objections to Authenticity Document Bates No Objections to Authenticity
LYSSA S. ANDERSON Nevada Bar No. 5781 RYAN W. DANIELS Nevada Bar No. 13094 KAEMPFER CROWELL Attorneys for Defendant Hugh Hardy
LYSSA S. ANDERSON Nevada Bar No. 5781 RYAN W. DANIELS Nevada Bar No. 13094 KAEMPFER CROWELL Attorneys for Defendant Hugh Hardy
JOINT PRETRIAL ORDER
Following pretrial proceedings in this cause, IT IS SO ORDERED:
I. Full Caption
Terrell Deshon Kemp, Sr. v. Hugh Hardy, 2:18-cv-00169-RFB-BNW
II. Trial Counsel
Counsel for Plaintiff
Snell & Wilmer, L.L.P.
Blakeley E.Griffith, Esq.
Erin M.Gettel, Esq.
Christian P. Ogata Esq.
Address: 3883 Howard Hughes Parkway, Suite 1100
Las Vegas, NV 89169 Phone: 702-784-5200 Fax: 702-784-5252
Counsel for Defendant
KaempferCrowell
Lyssa S. Anderson, Esq.
Ryan W.Daniels, Esq.
Address: 1980 Festival Plaza Drive, Suite 650
Las Vegas, Nevada 89135 Phone: 702-792-7000 Fax: 702-796-7181
III. Statement of Jurisdiction
The parties agree that this Court has subject-matter jurisdiction in this case under 28 U.S.C. §1331 because Kemp's sole claim to be tried arises under 42 U.S.C. § 1983.
IV. Claims and Defenses
Plaintiff Terrell Kemp Sr. was involved in an encounter with Las Vegas Metropolitan Police Department ("LVMPD") Corrections Officer Hugh Hardy in booking on July 26, 2016. At trial, Kemp alleges a violation of his Fourth Amendment right under 42 U.S.C. § 1983 by asserting that excessive force was used in the encounter.
A. Kemp contends that:
a. Claim to be tried
Following summary judgment, the sole claim to be tried is Kemp's claim for excessive force in violation of the Fourth Amendment arising under 42 U.S.C. § 1983 (First Cause of Action).
b. Claims previously asserted and not to be tried
In his amended complaint, Kemp asserted his § 1983 claim against Las Vegas Metropolitan Police Department under Monell v. Department of Social Services, and claims for deliberate indifference; negligence; negligence per se; negligent hiring, training, and supervision; and gross negligence. All claims but Kemp's § 1983 claim against Hardy were disposed of on summary judgment.
c. Defenses to be tried
Following summary judgment, Kemp contends that Hardy's remaining defenses to be tried include: whether Hardy is entitled to qualified immunity.
d. Defenses previously asserted and not to be tried
Hardy previously raised an affirmative-exhaustion defense. On summary judgment, this Court found that Kemp's "claim is not barred for failure to exhaust, as it is clear that the facility was on notice as to the specific facts and nature of his complaint."
ECF No. 125 at 14.
B. Officer Hardy contends that:
a. Claim to be tried
Following summary judgment, Hardy agrees that the sole claim to be tried is Kemp's claim for excessive force in violation of the Fourth Amendment arising under 42 U.S.C. § 1983 (First Cause of Action).
b. Defenses to be tried
Following summary judgment, Hardy contends that his remaining defenses to be tried include, but are not limited to, whether he is entitled to qualified immunity, whether his actions were the proximate cause of Kemp's alleged damages, whether his actions actually constituted a constitutional violation, and whether Kemp has mitigated his damages.
c. Claims previously asserted and not to be tried
In his amended complaint, Kemp asserted a § 1983 claim against Las Vegas Metropolitan Police Department under Monell v. Department of Social Services, and claims for deliberate indifference; negligence; negligence per se; negligent hiring, training, and supervision; and gross negligence. All claims but Kemp's § 1983 claim against Hardy were disposed of on summary judgment.
d. Defenses previously asserted and not to be tried
Hardy previously raised an exhaustion of administrative remedies defense. On summary judgment, this Court found that Kemp's "claim is not barred for failure to exhaust, as it is clear that the facility was on notice as to the specific facts and nature of his complaint."
ECF No. 125 at 14.
V. Number of trial days and type of trial
The parties agree that four days are needed for trial and that this case is to be tried with a jury.
VI. Trial by magistrate judge
The parties have not all consented to trial at this time.
VII. Stipulations or agreed statements of fact or law to which all parties consent.
The parties agree to the following statements of fact:
1. Officer Hardy is and was a Corrections Officer of LVMPD at all times relevant to these proceedings.
2. Kemp was booked at the Clark County Detention Center ("CCDC") on July 26, 2016.
VIII. List of all trial witnesses and brief summary of the substance of each witness's testimony.
A. Kemp's witnesses:
1. Terrell Deshon Kemp, Sr. c/o Snell & Wilmer 3883 Howard Hughes Pkwy,Ste 1100 Las Vegas, NV 89169
Mr. Kemp is expected to testify about the incident during his booking at CCDC with Officer Hardy, as well as his damages. Mr. Kemp will testify in person.
2. Officer Hugh Hardy c/oKaempferCrowell 1980 Festival Plaza Drive, Suite 650 Las Vegas, Nevada 89135
Officer Hardy is expected to testify about the incident during Mr. Kemp's booking at CCDC. Officer Hardy is expected to testify in person.
3. FRCP 30(b)(6) witness of Clark County Detention Center c/oKaempferCrowell 1980 Festival Plaza Drive, Suite 650 Las Vegas, NV 89135
This witness is expected to testify regarding his/her knowledge of the facts and circumstances surrounding the subject event, as well as CCDC's policies and procedures regarding booking and officers' interactions with inmates. This witness is expected to testify in person.
4. FRCP 30(b)(6) witness of Las Vegas Metropolitan Police Department c/oKaempferCrowell 1980 Festival Plaza Drive, Suite 650 Las Vegas, NV 89135
This witness is expected to testify regarding his/her knowledge of the facts and circumstances surrounding the subject event as well as the allegations set forth in the Complaint, as well as Standard Operating Procedures of LVMPD. This witness is expected to testify in person.
B. Officer Hardy's:
1. Terrell Deshon Kemp, Sr. c/o Snell & Wilmer 3883 Howard Hughes Pkwy,Ste 1100 Las Vegas, NV 89169
Mr. Kemp is expected to testify regarding his knowledge of the facts and circumstances surrounding the subject event as well as the allegations set forth in the Complaint.
2. Sgt. Gregory Dawson c/oKaempferCrowell 1980 Festival Plaza Drive, Suite 650 Las Vegas, Nevada 89135
Sgt. Dawson is expected to testify regarding his knowledge of the facts and circumstances surrounding the subject event as well as the allegations set forth in the Complaint.
3. Captain Nita Schmidt c/oKaempferCrowell 1980 Festival Plaza Drive, Suite 650 Las Vegas, Nevada 89135
Captain Schmidt is expected to testify regarding his knowledge of the facts and circumstances surrounding the subject event as well as the allegations set forth in the Complaint.
4. Officer Hugh Hardy c/oKaempferCrowell 1980 Festival Plaza Drive, Suite 650 Las Vegas, Nevada 89135
Officer Hardy is expected to testify regarding his knowledge of the facts and circumstances surrounding the subject event as well as the allegations set forth in the Complaint.
5. Person Most Knowledgeable of Las Vegas Metropolitan Police Department c/o Kaempfer Crowell 1980 Festival Plaza Drive, Suite 650 Las Vegas, NV 89135
This witness is expected to testify regarding his/her knowledge of the facts and circumstances surrounding the subject event as well as the allegations set forth in the Complaint.
6. Person Most Knowledgeable of Clark County Detention Center c/o Kaempfer Crowell 1980 Festival Plaza Drive, Suite 650 Las Vegas, NV 89135
This witness is expected to testify regarding his/her knowledge of the facts and circumstances surrounding the subject event as well as the allegations set forth in the Complaint.
7. Person Most Knowledgeable of Naphcare c/o Lewis Brisbois Bisgaard & Smith 6385 S. Rainbow Boulevard, Suite 600 Las Vegas, Nevada 89118
This witness is expected to testify regarding his/her knowledge of the facts and circumstances surrounding the subject event as well as the allegations set forth in the Complaint.
8. Dr. Larry Williamson c/o Lewis Brisbois Bisgaard & Smith 6385 S. Rainbow Boulevard, Suite 600 Las Vegas, Nevada 89118
Dr. Williamson is expected to testify regarding his knowledge of the facts and circumstances surrounding the subject event as well as the allegations set forth in the Complaint.
9. Scott Blondeaux, RN c/o Lewis Brisbois Bisgaard & Smith 6385 S. Rainbow Boulevard, Suite 600 Las Vegas, Nevada 89118
Mr. Blondeaux is expected to testify regarding his knowledge of the facts and circumstances surrounding the subject event as well as the allegations set forth in the Complaint.
10. Dr. Harry Duran c/o Lewis BrisboisBisgaard& Smith 6385 S. Rainbow Boulevard, Suite 600 Las Vegas, Nevada 89118
Dr. Duran is expected to testify regarding his knowledge of the facts and circumstances surrounding the subject event as well as the allegations set forth in the Complaint.
11. HASKendra c/o Lewis BrisboisBisgaard& Smith 6385 S. Rainbow Boulevard, Suite 600 Las Vegas, Nevada 89118
HAS Kendra is expected to testify regarding her knowledge of the facts and circumstances surrounding the subject event as well as the allegations set forth in the Complaint.
12. HAS Meyer c/o Lewis BrisboisBisgaard& Smith 6385 S. Rainbow Boulevard, Suite 600 Las Vegas, Nevada 89118
HAS Meyer is expected to testify regarding his knowledge of the facts and circumstances surrounding the subject event as well as the allegations set forth in the Complaint.
13. Officer Matthew Garley, P15652 c/oKaempferCrowell 1980 Festival Plaza Drive, Suite 650 Las Vegas, Nevada 89135
Officer Garley is expected to testify regarding his knowledge of the facts and circumstances surrounding the subject event as well as the allegations set forth in the Complaint.
14. John G. Peters, Jr., PhD, MBA, CLS 209 South Stephanie Street, Suite B249 Henderson, NV 89012
Dr. Peters is expected to testify on Clark County Detention Center's policies, practices, procedures and training of Corrections Officers generally. Dr. Peters will testify as to his examination of the facts in this matter in comparison to the facts with the accepted, standards and the appropriate or inappropriate actions of Sgt. Dawson, Captain Schmidt and Officer Hardy related to the incidents alleged in the Complaint.
15. Thomas D. Fowlkes, M.D. 1203 Medical Park Dr. Oxford, MS 38655
Dr. Fowlkes is a correctional medicine physician who is expected to offer his expert opinions as to Plaintiff TERRELL DESHON KEMP, SR.'s alleged medical conditions resulting from the incident(s) and action(s) which are the subject of Plaintiff s First Amended Complaint.
Dr. Fowlkes will testify as to the reasonableness and necessity of Plaintiffs medical treatment provided at the Clark County Detention Center, Plaintiffs alleged serious medical need, and whether Defendants were deliberately indifferent to Plaintiffs alleged serious medical needs. Dr. Fowlkes will also testify regarding the existence and extent of Plaintiffs pre-incident and postincident injuries/conditions, as well as Plaintiffs prognosis. Dr. Fowlkes is also expected to give rebuttal opinions in response to other witnesses or experts designated in this matter. He reserves the right to supplement and/or revise his report as new information is provided.
IX. Designation of deposition to be offered and counter-designations.
A. Kemp
Kemp may offer his own deposition in its case in chief, if any.
B. Officer Hardy
Hardy may offer Kemp's deposition for impeachment or in the event of unavailability.
X. Exhibits
A list by each party of exhibits to be offered in its case in chief, with one star indicating exhibits to which no party objects on grounds of authenticity, and two stars indicating exhibits to which no party objects on any grounds.
Document | Bates | No Objections to Authenticity | NoObjections |
Officer Hardy's responses to First Set of Interrogatories | N/A | * | |
LVMPD's responses to First Set of Interrogatories | N/A | * | |
LVMPD Defendants' responses to First Set of Requests for Production of Documents | N/A | * | |
Various NaphCare Records | Miscellaneous | * | |
Kemp's grievances related to the incident on July 26, 2016 | Miscellaneous | * | |
Pages of Citizen Review Board Complaint, CR2016-109 | Miscellaneous | * | ** |
CCDC SOP 09.11.01 - Use of Force | LVMPD001570- LVMPD001601 | * | ** |
Training Logs of Officer Hugh Hardy | LVMPD001665- LVMPD001703 | * | ** |
A. Officer Hardy's exhibits
Document | Bates | No Objections to Authenticity | NoObjections |
1. Inmate Summary | LVMPD000001 | * | |
2. Inmate Assessments | LVMPD000002- LVMPD000008 | * | |
3. Inmate Incident History (3-1-06- 12-17-18) | LVMPD000009- LVMPD000017 | * | |
4. Inmate Incident History (726-16- 1-10-19) | LVMPD000018- LVMPD000020 | * | |
5. Inmate Request Report | LVMPD000023- LVMPD000036 | * | |
6. Inmate Request/Grievance Forms | LVMPD000037- LVMPD000271 | * |
Document | Bates | No Objections to Authenticity | NoObjections | |
7. | Inmate Transfer Memo | LVMPD000272 | * | |
8. | CCDC Accounting Records | LVMPD000280- LVMPD000293 | * | |
9. | CCDC Inmate Housing History | LVMPD000294 | * | |
10. | LVMPD Photograph/Information Sheet | LVMPD000335 | * | |
11. | Temporary Custody Records | LVMPD000337- LVMPD000345 | * | |
12. | NaphCare Records | LVMPD000348- LVMPD001504 | * | |
13. | Citizen Review Board records for CR2016-109 | LVMPD001512- LVMPD001521 | * | |
14. | Internal Affairs Records for SOC2016-0710 | LVMPD001522- LVMPD001531 | * | |
15. | Citizen Review Board records for CR2016-121 | LVMPD001532- LVMPD001539 | * | |
16. | Internal Affairs Records for SOC2016-0741 | LVMPD001540- LVMPD001546 | * | |
17. | Citizen Review Board Records for CR2016-162 | LVMPD001547- LVMPD001553 | * | |
18. | Citizen Review Board Records for CR2017-127 | LVMPD001554- LVMPD001560 | * | |
19. | Disk Containing video of 9/1/2016 Hearing before Judge DelaCruz | LVMPD001561 | * | |
20. | CCDC SOP 14.00.00- Inmate Requests/Grievances and Complaints/Grievances Against Staff | LVMPD001562- LVMPD001569 | * | ** |
21. | CCDC SOP 09.11.01 - Use of Force | LVMPD001570- LVMPD001601 | * | ** |
Document | Bates | No Objections to Authenticity | NoObjections |
22. CCDC SOP 13.00.00- Medical Services | LVMPD001602- LVMPD001633 | * | ** |
23. CCDC SOP 17.01.14- Booking Intake and Holding | LVMPD001634- LVMPD001664 | * | ** |
24. Training Logs of Officer Hugh Hardy | LVMPD001665- LVMPD001703 | * | ** |
25. Dr. Peters' initial expert report, fee schedule, curriculum vitae, and list of prior testimony | * | ||
26. Dr. Peters' supplemental expert report | * | ||
27. Thomas D. Fowlkes' Report | WKN-FOWLKES 00001-00014 | * | |
28. Thomas D. Fowlkes' CV | WKN-FOWLKES 00015-00019 | * | |
29. Thomas D. Fowlkes' Testimony History | WKN-FOWLKES 00020-00023 | * | |
30. Thomas D. Fowlkes' Fee Schedule | WKN-FOWLKES 00024 | * | |
31. Plaintiff's Responses to LVMPD's Requests For Admissions | * | ||
32. Plaintiff's Responses to Dawson'sRequestsfor Admissions | * | ||
33. Plaintiff's Responses to Hardy's Requests for Admissions | * | ||
34. Plaintiff's Responses to Dawson's Interrogatories | * | ||
35. Plaintiff s Responses to Hardy's Interrogatories | * |
XI. Trial Dates
At the status conference in this matter, this Court ordered the parties to meet and confer about dates that counsel was available for trial in December 2023 and January 2024. The parties have met and conferred and agreed that they are available to begin trial on January 16, 2024, in this matter.
In the event that is an inconvenient date for the Court, the Parties are available as follows: April 15, 2024 and April 29, 2024.
KAEMPFER CROWELL Lyssa S. Anderson (NV Bar # 5781) Ryan W. Daniels (NV Bar # 13094) Attorneys for Defendant Hugh Hardy
SNELL & WILMER Erin Gettel (NV Bar # 13877) Blakely Griffith (NV Bar # 12386) Christian Ogata (NV Bar # 15612) Attorneys for Plaintiff Terrell Deshon Kemp, Sr.
XI. ACTION BY THE COURT
The Court GRANTS in part the [159] Stipulation to Continue trial aqnd [160] Proposed Pretrial Order. This case is set for jury trial on May 6, 2024 at 8:30 a.m. and Calendar call will be held on April 2, 2024 at 1:30 p.m. An Amended Order Regarding trial shall issue in 2024.