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Rosa v. White

United States District Court, D. Nebraska

September 18, 2015

RAUL DE LA ROSA, Plaintiff,



The plaintiff in this case, Raul De La Rosa, alleges that his Fourth Amendment rights were violated by the defendant, Mark White, a Trooper employed by the Nebraska State Patrol, when White searched De La Rosa's vehicle. See filing 1. This matter is before the Court on White's motion for summary judgment (filing 13), De La Rosa's cross-motion for partial summary judgment (filing 21), and White's motion to strike De La Rosa's evidence (filing 23). White's motion to strike will be denied, his motion for summary judgment will be granted in part and in part denied, and De La Rosa's motion for partial summary judgment will be denied.


The events resulting in this case began when White, who was on patrol duty, saw De La Rosa's pickup truck following another vehicle too closely. Filing 14 at 3.[1] Specifically, White timed De La Rosa's truck following 1.16 seconds behind another vehicle, and concluded that De La Rosa was following more closely than was "reasonable and prudent, " in violation of the Nebraska Rules of the Road. Filing 14 at 3; see Neb. Rev. Stat. § 60-6, 140(1). White pulled De La Rosa over. Filing 14 at 3. White approached the vehicle, and De La Rosa showed White his Arizona driver's license. Filing 14 at 3.

White asked De La Rosa to sit in the patrol unit, which he did. Filing 14 at 3. White asked De La Rosa questions about where he was traveling, his employment, and his criminal history. Filing 14 at 3. De La Rosa said that he was driving from Phoenix to Illinois for 5 days to visit some friends, that he was unemployed, and did not have a criminal record. Filing 14 at 4. White found, however, that De La Rosa had a "positive criminal history for destruction of property." Filing 14 at 4. That charge against De La Rosa had, in fact, not been prosecuted-when White asked De La Rosa about it, De La Rosa said that he had gone to court but that the prosecutor had said the charge would be dismissed. Filing 21-5 at 35. And the records available to White on his computer indicated the same thing. Filing 21-5 at 36-37.

White issued a warning citation to De La Rosa and informed him that he was free to go. Filing 14 at 4; filing 21-5 at 17. But as De La Rosa was getting out of the patrol vehicle, White asked De La Rosa if he had drugs or any other contraband in his vehicle. Filing 14 at 4. De La Rosa said he did not. Filing 14 at 4. White asked De La Rosa for permission to search his vehicle, but De La Rosa refused. Filing 14 at 5. So, White told De La Rosa he would be detained until a drug detection dog came to conduct an exterior sniff of the vehicle. Filing 14 at 5.

White called for a K9 unit, which arrived 50 minutes after being requested. Filing 14 at 5. The dog alerted to De La Rosa's vehicle, and White, along with the K9 trooper, conducted a search. Filing 14 at 5. They found marijuana shake and three firearms, and De La Rosa was arrested and charged with carrying a concealed weapon. Filing 14 at 6. But the charge was dismissed on the prosecution's motion after the county court granted De La Rosa's motion to suppress the evidence obtained from the search. Filing 21-4; filing 21-5 at 54.

De La Rosa sued White under 42 U.S.C. § 1983, alleging violation of his Fourth Amendment rights.[2] Filing 1 at 4-5. White has moved for summary judgment based on qualified immunity. Filing 13. De La Rosa has filed a cross-motion for summary judgment as to liability. Filing 21. And White has moved to strike De La Rosa's evidence, arguing that some of the evidence is inadmissible and that his exhibits are improperly authenticated. Filing 23.


Summary judgment is proper if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). The movant bears the initial responsibility of informing the Court of the basis for the motion, and must identify those portions of the record which the movant believes demonstrate the absence of a genuine issue of material fact. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). If the movant does so, the nonmovant must respond by submitting evidentiary materials that set out specific facts showing that there is a genuine issue for trial. Id.

On a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts. Id. Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the evidence are jury functions, not those of a judge. Id. But the nonmovant must do more than simply show that there is some metaphysical doubt as to the material facts. Id. In order to show that disputed facts are material, the party opposing summary judgment must cite to the relevant substantive law in identifying facts that might affect the outcome of the suit. Quinn v. St. Louis County, 653 F.3d 745, 751 (8th Cir. 2011). The mere existence of a scintilla of evidence in support of the nonmovant's position will be insufficient; there must be evidence on which the jury could conceivably find for the nonmovant. Barber v. C1 Truck Driver Training, LLC, 656 F.3d 782, 791-92 (8th Cir. 2011). Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. Torgerson, 643 F.3d at 1042.


White's Motion to Strike Before discussing the merits of the parties' cross-motions for summary judgment, the Court will address White's motion to strike, so that it is clear what evidence the Court is considering with respect to summary judgment. First, White complains that De La Rosa's personal affidavit, setting forth his version of events, "is replete with inadmissible evidence in the form of statements made without personal knowledge, statements consisting of hearsay, and general and conclusory statements . . . ." Filing 24 at 2-3. White's arguments are generally unpersuasive-it is not hard to see, for example, how De La Rosa has "personal knowledge" of the events of a traffic stop that he was part of, or a court proceeding at which he was present. But in any event, the standard at the summary judgment stage is not whether the evidence offered would be admissible at trial, "it is whether it could be presented at trial in an admissible form." See, Fed. R. Civ. P. 56(c)(2); Gannon Int'l, Ltd. v. Blocker, 684 F.3d 785, 793 (8th Cir. 2012). Here, White has not argued that foundation could not be laid for the averments in De La Rosa's affidavit to be presented in an admissible form at trial. And that is what Rule 56(c)(2) requires. See Gannon, 684 F.3d at 793.[3]

For similar reasons, the Court finds White's complaints about the authorization of De La Rosa's evidence to be unpersuasive. White contends that De La Rosa's exhibits were not authenticated by an affidavit, as required by NECivR 7.1(b)(2)(C). The Court does not condone De La Rosa's disregard for the basic requirements of the Court's rules, in this respect or any other (as will be discussed again below). But submission of unauthenticated documents in support of or opposition to a summary judgment motion no longer violates Rule 56 per se. See Foreword Magazine, Inc. v. OverDrive, Inc., 2011 WL 5169384, at *2 (W.D. Mich. 2011). Instead, under Rule 56(c)(2), the proper objection to unauthenticated evidence is that it cannot be authenticated, and therefore cannot be presented in admissible form at trial. SeeFed. R. Civ. P. 56(c)(2); see also Foreword Magazine, at *2.White has not made such an objection, nor does White contend that De La Rosa's exhibits are actually not what they are represented to be. Under these circumstances, then, White is complaining about a matter that is more form than substance, and the Court declines to strike De La Rosa's evidence on that basis.

White's Motion for Summary Judgment-Qualified Immunity White's motion for summary judgment is predicated on his entitlement to qualified immunity. Qualified immunity shields public officials performing discretionary functions from liability for conduct that does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Parker v. Chard, 777 F.3d 977, 979 (8th Cir. 2015). It gives government officials breathing room to make reasonable but mistaken ...

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