Cuzze v. Univ. & Cmty. Coll. Sys. of Nev.

• Citation: 172 P.3d 131
• Decision Date: 13 December 2007
• Docket Number: No. 46449.,46449.
• Parties: Ron CUZZE; Brian Dias; and Terence Jenkinson, Appellants, v. UNIVERSITY AND COMMUNITY COLLEGE SYSTEM OF NEVADA, A Nevada Public Entity; and the University of Nevada, Las Vegas, A Nevada Public Entity/Institution, Respondents.
• Court: Supreme Court of Nevada

172 P.3d 131

Ron CUZZE; Brian Dias; and Terence Jenkinson, Appellants, v. UNIVERSITY AND COMMUNITY COLLEGE SYSTEM OF NEVADA, A Nevada Public Entity; and the University of Nevada, Las Vegas, A Nevada Public Entity/Institution, Respondents.

No. 46449.

Supreme Court of Nevada.

December 13, 2007.

Kirk T. Kennedy, Las Vegas, for Appellants.

Richard C. Linstrom, General Counsel, and Marc P. Cardinalli, Assistant General Counsel, Las Vegas, for Respondents.

BEFORE MAUPIN, C.J., DOUGLAS and CHERRY, JJ.

OPINION

By the Court, CHERRY, J.:

INTRODUCTION

In this appeal, involving a deficient record, we reiterate our oft-stated rule that appellant bears the responsibility of ensuring an accurate and complete record on appeal and that missing portions of the record are presumed to support the district court's decision. As appellants have failed to provide, in the record, their opposition to the summary judgment motion, we necessarily affirm the district court's order granting summary judgment. In doing so, we clarify the burdens of proof and production that pertain to summary judgment.

Additionally, as appellants did not include, in the record, their opposition to respondents' attorney fees motion, we necessarily affirm the district court's order granting attorney fees. Although not necessary to our disposition, in order to provide guidance to the district courts when considering an attorney fees award under 42 U.S.C. § 1988, we explain the appropriate standard to be used in determining whether to award such fees to civil rights defendants and the proper method for determining a reasonable amount of fees.

FACTS

Appellants Ron Cuzze, Brian Dias, and Terence Jenkinson were employed as police officers by the University of Nevada, Las Vegas (UNLV). Appellants filed a complaint in the district court against respondents, the University and Community College System of Nevada (UCCSN) and UNLV, for civil rights violations under 42 U.S.C. § 1983, invasion of privacy/false light, defamation, intentional infliction of emotional distress, and negligence. The complaint was grounded on the following factual allegations. In the spring of 1999, appellants were involved in the arrest of UNLV student Leroy Hudson. Following his arrest, Hudson accused appellants of police misconduct, and the event was widely publicized by the local media, including the UNLV-funded newspaper, The Rebel Yell. A second incident occurred in the fall of 1999 when, during a concert on UNLV's campus, appellants detained and questioned Denise Jaramillo, a UCCSN student. Officer Dias was disciplined over the incident. Subsequently, a UNLV student group, the Multicultural Student Affairs Organization, published and distributed flyers protesting the UNLV police department's treatment of Hudson and Jaramillo. According to appellants, the flyers were defamatory and funded by UNLV.

In December 1999, Officer Jenkinson detained Jay and Jerry Doan on suspicion of scalping tickets on UNLV's grounds. According to appellants, during the incident, Jerry Doan struck Officer Jenkinson; however neither of the Doans was arrested. Although no disciplinary action was taken against Officer Jenkinson, appellants maintain that UNLV later sent a letter to the Doans apologizing for the incident.

In March 2000, appellants searched a UNLV dormitory. Following the search, appellants and other officers involved in the search were purportedly criticized by respondents for revealing information related to an ongoing investigation. A Las Vegas Review-Journal article ostensibly quoted UNLV Regent Doug Hill as stating that the officers involved, including appellants, acted like "Keystone Cops" and that they "flagrantly violated" departmental procedures during the raid.

According to appellant Cuzze, in 2000, a UNLV Vice President interfered with Cuzze's investigation into reported sexual assault and rape incidents occurring on campus. Later, during a meeting with UNLV police officers, including appellants, former UNLV President Carol Harter purportedly spoke concerning the recent events and police morale indicating that the UNLV administration knew who the "troublemakers" were and that efforts would be taken to remove them. Thereafter, a file labeled "Harter/Ackerman" and containing a list of eight officers, including appellants, was allegedly found at the police office.

Respondents ultimately moved for summary judgment, and the district court granted the motion. Subsequently, on respondents' motion, the district court awarded respondents attorney fees under 42 U.S.C. § 1988 and costs. Appellants appeal from both orders.

DISCUSSION

Standard of review

This court reviews an order granting summary judgment de novo.¹ We have previously explained that summary judgment is appropriate "when the pleadings, depositions, answers to interrogatories, admissions, and affidavits, if any, that are properly before the court demonstrate that no genuine issue of material fact exists, and the moving party is entitled to judgment as a matter of law."² With respect to burdens of proof and persuasion in the summary judgment context, we follow the federal approach outlined in Celotex Corp. v. Catrett.³ The party moving for summary judgment bears the initial burden of production to show the absence of a genuine issue of material fact.⁴ If such a showing is made, then the party opposing summary judgment assumes a burden of production to show the existence of a genuine issue of material fact.⁵ The manner in which each party may satisfy its burden of production depends on which party will bear the burden of persuasion on the challenged claim at trial.⁶ If the moving party will bear the burden of persuasion, that party must present evidence that would entitle it to a judgment as a matter of law in the absence of contrary evidence.⁷ But if the nonmoving party will bear the burden of persuasion at trial, the party moving for summary judgment may satisfy the burden of production by either (1) submitting evidence that negates an essential element of the nonmoving party's claim,⁸ or (2) "pointing out . . . that there is an absence of evidence to support the nonmoving party's case."⁹ In such instances, in order to defeat summary judgment, the nonmoving party must transcend the pleadings and, by affidavit or other admissible evidence, introduce specific facts that show a genuine issue of material fact.¹⁰

Application of summary judgment standards

In this case, appellants, as plaintiffs below, bore the burden of persuasion at trial. Thus, respondents, in moving for summary judgment, properly pointed to the absence of evidence to support appellants' causes of action. Once respondents pointed to this evidentiary deficiency, appellants had the burden of presenting evidence showing a material issue of fact.

Although appellants had the burden below of presenting evidence that would support the existence of a material fact with respect to at least one claim, they have failed to include their opposition to respondents' motion in the record on appeal.¹¹ This court has previously explained that it generally cannot consider matters not contained in the record on appeal.¹² Additionally, this court has made it clear that appellants are responsible for making an adequate appellate record.¹³ NRAP 30(b)(3) provides, in pertinent part, that an appellant's appendix must include any portion of the record that is necessary for this court's determination of the issues raised on appeal. When an appellant fails to include necessary documentation in the record, we necessarily presume that the missing portion supports the district court's decision.¹⁴

In the instant case, appellants' appendix includes, among other things, their answers to interrogatories, and a copy of a Las Vegas Review-Journal newspaper article, but no opposition to the summary judgment motion. Without the opposition, these documents have no context, and we are unable to discern, with any certainty, that they were even submitted with the opposition.¹⁵

In their answering brief, respondents point out that appellants failed to include necessary documents in their appendix. Despite this notice, appellants failed to take any steps to supplement their appendix with the missing documents. As appellants have failed to include, in the record, their opposition to respondents' summary judgment motion, we necessarily presume that this opposition failed to introduce admissible evidence of specific facts showing that a genuine factual issue exists for trial. We therefore affirm the district court's order granting summary judgment.¹⁶

Attorney fees

As with the summary judgment motion, appellants have failed to include in the record their opposition to respondents' attorney fees and costs motion. Accordingly, as we have no way to meaningfully review the district court's order for error, we necessarily presume that the missing opposition supports the district court's decision. And although we affirm the district court's attorney fees and costs order on this basis, we include the following discussion in order to provide guidance to district courts when considering whether to award attorney fees under 42 U.S.C. § 1988.

Below, the district granted summary judgment to respondents on appellants' claim that their constitutional rights were violated under 42 U.S.C. § 1983. Additionally, the district court granted respondents their attorney fees under 42 U.S.C. § 1988(b), which provides that "[i]n any action or proceeding to enforce . . . section[ ] . . . 1983 . . ., the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs."

Section 1988 gives the court discretion to award fees to a prevailing party in a § 1983 action, but the United States Supreme Court has determined that such attorney fees are available to a § 1983 defendant only when the plaintiffs claim is "meritless in the sense that it is groundless...