                                                                              FILED
                           NOT FOR PUBLICATION                                 JUN 02 2015

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


CHENTILE GOODMAN,                                No. 13-16751

              Plaintiff - Appellee,              D.C. No. 2:11-cv-01447-MMD-
                                                 VCF
 v.

LAS VEGAS METROPOLITAN POLICE                    MEMORANDUM*
DEPARTMENT, a political subdivision of
the State of Nevada; et al.,

              Defendants - Appellants.


                   Appeal from the United States District Court
                            for the District of Nevada
                     Miranda Du, District Judge, Presiding

                       Argued and Submitted May 15, 2015
                            San Francisco, California

Before: N.R. SMITH and OWENS, Circuit Judges, and COLLINS,** Chief
District Judge.

      Plaintiff-Appellee Chentile Goodman sued Defendants-Appellants Detective

John Segura, Sergeant James Signorello, and the Las Vegas Metropolitan Police

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Raner C. Collins, Chief District Judge for the U.S.
District Court for the District of Arizona, sitting by designation.
Department after the officers stopped and detained her on suspicion of loitering for

the purpose of prostitution. This interlocutory appeal challenges (a) the denial of

summary judgment on qualified immunity grounds on Goodman’s claims under 42

U.S.C. § 1983, (b) the grant of summary judgment in Goodman’s favor on the

§ 1983 claims, and (c) the denial of summary judgment to the officers and grant of

summary judgment to Goodman on the state false imprisonment claim. We have

jurisdiction over the federal claims. Mueller v. Auker, 576 F.3d 979, 989 (9th Cir.

2009). We affirm in part and reverse in part the district court’s order concerning

the federal claims, and remand for trial. We dismiss the appeal as to the state law

claim.

         1. On review of cross motions for summary judgment, we must carefully

examine the factual record in the light most favorable to the nonmoving party as to

each motion. Suzuki Motor Corp. v. Consumers Union of U.S., Inc., 330 F.3d

1110, 1131 (9th Cir. 2003). Because the facts here are so thoroughly disputed, and

the resolution of the federal claims depends entirely on who is believed, summary

judgment for either party is inappropriate.

         Under the facts as presented by Goodman, the officers are not entitled to

qualified immunity. According to Goodman, she was stopped when she was

walking through a Las Vegas casino with a friend, on her way to meet her


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boyfriend. She wore conservative clothing, never stopped walking or attempted to

engage any other casino patrons, and perfunctorily rebuffed the undercover

officers’ advances. Although the officers knew that Goodman’s companion was

married to a pimp and was independently suspected of prostitution, “mere

propinquity to others independently suspected of criminal activity” does not

overcome the right to be free from suspicionless detention. See Ybarra v. Illinois,

444 U.S. 85, 91 (1979). No particularized facts gave rise to suspicion as to

Goodman; she was simply walking with a suspicious person. No reasonable

officer could have believed that every person walking near a suspected prostitute

late at night in a Las Vegas casino could lawfully be detained on suspicion of

prostitution.

      Because the officers are not entitled to summary judgment as to the initial

stop, they are not entitled to summary judgment as to the actions following the

initial stop: Goodman’s continuing detention, the seizure and search of her purse,

and the seizure of her cell phone. Any reasonable officer would have been aware

that the warrantless detention, search, and seizure were unreasonable in the absence

of reasonable suspicion of criminal activity. See Terry v. Ohio, 392 U.S. 1, 21-22

(1968). Goodman’s testimony suggests that she was subjected to a long and

humiliating detention for no reason beyond intimidating her, and that the officers


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rifled through her purse without her consent. We therefore affirm the district

court’s denial of summary judgment to the officers on all federal claims.

      2. However, under the facts presented by the officers, a jury could conclude

that the officers are entitled to immunity. The officers remember that Goodman

was seen wearing provocative clothing near the casino’s elevators, an area known

particularly for prostitution activity. The undercover officers attempted to engage

Goodman and her companion, but the women seemed to be in a hurry to leave the

casino. This may indicate that they recognized the officer who had arrested

Goodman’s companion (whom they knew was married to a well-known Las Vegas

pimp) on suspicion of prostitution two nights before. See United States v. Thomas,

211 F.3d 1186, 1190-91 (9th Cir. 2000) (“furtive conduct” may support reasonable

suspicion). A reasonable officer could, under those circumstances, have believed

the facts supported a reasonable suspicion that Goodman was loitering for the

purposes of prostitution.

      After the initial stop, the officers took Goodman’s cell phone and led her to

the casino security office, where they took her purse. In the context of a valid

investigatory stop in a crowded casino during a large-scale prostitution sting, it was

reasonable for officers to take the suspect’s cell phone and purse and move to a




                                          4                                    13-16751
private area to facilitate the investigation and insure officer safety.1 See United

States v. Miles, 247 F.3d 1009, 1012-13 (9th Cir. 2001) (officers’ “legitimate

safety concerns” may justify more “intrusive” conduct during an investigatory

stop).

         Taking the officers’ version of events as true, Goodman was held for a short

amount of time while the officers questioned her and searched for warrants before

she was released to the custody of casino security, who took her picture, gave her a

trespassing warning, and escorted her off the property. Although Goodman

remembers that she was held for nearly two hours, the officers disagree. While

that was happening, the officers were also processing and arresting at least fourteen

other suspects. Given that the precise length of the detention is indeterminate at

this stage, a reasonable jury could find that the officers “diligently pursued a means

of investigation that was likely to confirm or dispel their suspicions quickly, during

which time it was necessary to detain the defendant.” United States v. Sharpe, 470

U.S. 675, 686 (1985). Accordingly, the district court erred in granting summary

judgment to Goodman as to the federal claims.

         1
        The officers testified that prostitutes often use their phones as weapons or
to hide weapons. Further, the officers testified that in prostitution stings it is
important to seize the suspect’s cell phone so that they do not alert their pimp to
the presence of the officers. This is important both for the officers’ safety and the
success of the sting.

                                           5                                    13-16751
      3. Appellants have failed to meet their burden to establish that we may

exercise jurisdiction over an interlocutory appeal of a denial of discretionary-

function immunity under section 41.032(2) of the Nevada Revised Statutes. See

Scott v. Breeland, 792 F.2d 925, 927 (9th Cir. 1986) (“The party seeking to invoke

the court’s jurisdiction bears the burden of establishing that jurisdiction exists.”).

The few cases Appellants cite that label section 41.032 an immunity from suit, see

Ortega v. Reyna, 953 P.2d 18, 23 (Nev. 1998); Butler ex rel. Biller v. Bayer, 168

P.3d 1055, 1066 (Nev. 2007), are not persuasive because there is no indication that

the Nevada Supreme Court sought to distinguish between an immunity from suit

and a mere immunity from liability, the denial of which is not amenable to

interlocutory review. See Liberal v. Estrada, 632 F.3d 1064, 1074 (9th Cir. 2011);

see also Martinez v. Maruszczak, 168 P.3d 720, 722-25 (Nev. 2007) (discussing

solely immunity from liability). It appears that section 41.032 provides immunity

from liability for the state and its employees for certain discretionary actions, see

Martinez, 168 P.3d at 722-25, not a “right to avoid trial” altogether, see Digital

Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 875 (1994). Appellants thus

have not shown that a denial of immunity under section 41.032 is “effectively

unreviewable” on appeal from a final judgment. See Mohawk Indus., Inc. v.




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Carpenter, 558 U.S. 100, 106 (2009). The appeal is dismissed as to the state law

claims.

      The parties shall bear their own respective costs on appeal.

      AFFIRMED in part, REVERSED in part, DISMISSED in part, and

REMANDED.




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