Pierson v. Storey County et al, No. 3:2012cv00598 - Document 44 (D. Nev. 2015)

Court Description: ORDER granting 37 Motion for Summary Judgment; directing Clerk to enter judgment in favor of Defendants. Signed by Judge Miranda M. Du on 3/5/2015. (Copies have been distributed pursuant to the NEF - KR)
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Pierson v. Storey County et al Doc. 44 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 ERIC PIERSON, Plaintiff, 10 11 Case No. 3:12-cv-00598-MMD-VPC v. (Defs.’ Motion for Summary Judgment – dkt. no. 37) STOREY COUNTY, et al., 12 ORDER Defendants. 13 14 15 I. SUMMARY 16 Before the Court is Defendants Storey County, Greg Hess, Laura Grant, and Jim 17 Miller’s Motion for Summary Judgment (“Motion”). (Dkt. no. 37.) For the reasons set forth 18 below, the Motion is granted. 19 II. BACKGROUND 20 The background facts are recounted in the Court’s Order granting Defendants’ 21 Motion to Dismiss, which resulted in dismissal of all but two claims for malicious 22 prosecution under federal and state law. (Dkt. no. 36.) While the Amended Complaint is 23 scant on the facts, the Court gathers the following facts relating to Plaintiff’s malicious 24 prosecution claims.1 25 Plaintiff Eric Pierson ran for a Commissioner seat on the Board of County 26 Commissioners for Storey County, but failed to win. (Dkt. no. 3 ¶ 8.) The Amended 27 The source of these facts is the Amended Complaint and the parties’ briefs and proffered exhibits relating to Defendants’ Motion. (Dkt. nos. 3, 37, 40, 41.) 28 1 Dockets.Justia.com 1 Complaint does not provide the date of the election, although Plaintiff’s deposition 2 testimony referred to the 2006 election. (Dkt. no. 37-1, Exh. 1, at 19.) During the 3 campaign, Plaintiff expressed his disagreement with Defendant Greg Hess, who was a 4 Commissioner at the time, and Defendant Jim Miller, who was Storey County’s Sheriff at 5 the time, on a number of issues, including alleged corruption in County government and 6 residential development in northern Storey County. (Dkt. no. 3 ¶ 8.) 7 In the Amended Complaint, Plaintiff alleges that he was arrested on December 8 24, 2007, and the charges remained pending until the state court dismissed them in 9 January 2012. (Id. ¶ 14.) The Complaint does not allege who arrested him, on what 10 charges, or any other relevant details. Defendants’ Motion offers these details. On 11 December 24, 2007, the Storey County District Attorney’s Office filed a Criminal 12 Complaint against Plaintiff for two felony counts of sexual assault in violation of NRS 13 § 200.366 and one felony count of battery with the intent to commit a sexual assault in 14 violation of NRS § 200.400(4)(b). (Dkt. no. 37-1, Exh. 10.) The allegations in support of 15 the Criminal Complaint involved Plaintiff’s alleged conduct directed at his former spouse 16 of more than ten years, Robertina Pierson Brown. 17 Plaintiff and Ms. Brown separated on July 4, 2007. (Dkt. no. 37-1, Exh. 1, at 4-6.) 18 Two days later, Ms. Brown obtained a temporary protective order against Plaintiff for 19 domestic violence from the Justice Court of Virginia Township. (Id.; dkt. no. 37-1, Exh. 2, 20 at 21.) On July 10, 2007, Ms. Brown filed a report against Plaintiff with the Storey County 21 Sheriff’s Office (“Sheriff’s Office”), claiming that Plaintiff had pointed a loaded firearm at 22 her during previous fights and requesting that the firearm be removed by the Sheriff’s 23 Office for safekeeping. (Id., Exh. 2, at 29.) On August 21, 2007, Ms. Brown filed a written 24 statement with the Sheriff’s Office wherein she claimed to have been subjected to acts of 25 domestic violence by Plaintiff in the past year, including an alleged rape in May 2007. 26 (Id., Exh. 5, at 37.) The Sheriff’s Office responded and conducted an investigation, 27 including interviewing Ms. Brown and her sister and reviewing Ms. Brown’s medical 28 records. (Id., Exh. 5, at 34-38.) The Sheriff’s Office referred the case to the Storey 2 1 County District Attorney’s Office (“DA’s Office”) with a request that a criminal complaint 2 be initiated. (Id., Exh. 5, at 36) On September 18, 2007, the Storey County Board of 3 Commissioners adopted a resolution requesting that the criminal prosecution of Plaintiff 4 be referred to the Nevada Attorney Generals’ Office due to a conflict of interest created 5 by a personal relationship between Plaintiff and the Storey County District Attorney. (Id., 6 Exh. 7.) The Nevada Attorney General’s Office declined, citing a lack of resources. (Id., 7 Exh. 8.) 8 On December 21, 2007, Ms. Brown provided another statement to the Sheriff’s 9 Office in which she alleged that she had been raped by Plaintiff on June 1, 2007. (Id., 10 Exh. 9, at 48-52.) Again, the Sheriff’s Office conducted an investigation, including 11 interviewing Ms. Brown and her friend Sandra Nicholson. (Id., Exh. 9, at 48-52.) Three 12 days later, on December 24, 2007, the DA’s Office filed a Criminal Complaint against 13 Plaintiff (“Criminal Case”). (Id., Exh. 10.) Defendant Laura Grant (“Special Prosecutor”) 14 was appointed as a Special Prosecutor to prosecute Plaintiff. (Id., Exh. 1, at 16.) The 15 preliminary hearing occurred over the course of two days in February and March 2008. 16 (Id., Exh. 1, at 17.) Plaintiff was represented by counsel and had the opportunity to 17 present evidence and to cross-examine the prosecution’s witnesses, including Ms. 18 Brown. (Id., Exh. 1, at 9-10.) The presiding justice of the peace concluded there was 19 probable cause to bind Plaintiff over for trial on all charges. (Id., Exh. 1, at 10, 57.) 20 One of the issues raised in Criminal Case involved Plaintiff’s request for an order 21 for independent psychological evaluation of Ms. Brown. (Id., Exh. 13.) In April 2009, the 22 presiding district court judge denied the request without prejudice based on a finding that 23 Plaintiff failed to produce evidence that Ms. Brown’s “mental or emotional state may 24 have affected her veracity.” (Id., Exh. 13.) Several months later, in August 2009, the 25 court granted Plaintiff’s request, finding that Plaintiff offered information from a physician, 26 “including his opinion to a reasonable psychiatric certainty[,] that Ms. Brown’s mental or 27 emotional state may have affected her veracity.” (Id., Exh. 14.) The district court further 28 ordered the prosecution to provide the physician who was to examine Ms. Brown with 3 1 “all relevant records impacting Ms. Brown’s medical and psychiatric status.” (Id., Exh. 2 14.) The Special Prosecutor represented to Plaintiff’s counsel in the Criminal Case that 3 all relevant medical documents had been produced, but that she could not advise Ms. 4 Brown to waive her right to privacy by consenting to disclose her medical and 5 psychological records. (Id., Exh. 15.) 6 The Special Prosecutor’s position that the prosecution’s discovery obligation 7 extended only to documents in its possession and that the prosecution could not advise 8 Ms. Brown to waive her right to privacy, as well as Ms. Brown’s refusal to provide the 9 medical release, became the subject of considerable dispute in the Criminal Case. (Id., 10 Exhs. 17, 18.) The dispute apparently led Plaintiff to file a motion to dismiss, which the 11 state court denied. (Id., Exh. 17.) Plaintiff then sought a petition for writ of mandamus 12 from the Nevada Supreme Court to prohibit the district court from proceeding to trial or, 13 in the alternative, to dismiss the charges. (Id., Exh. 18.) The Nevada Supreme Court 14 denied the petition. (Id.) About two weeks before trial, on January 31, 2012, the state 15 court granted Plaintiff’s motion, entitled “Motion in Limine Re: Testimony Violates 16 Confrontation and Due Process Clause.”2 (Id., Exh. 19.) In that order, the district court 17 precluded the prosecution from offering any testimony from Ms. Brown. The court 18 dismissed the Criminal Complaint, citing the following reason: “in light of the State’s 19 acknowledgment that it has no case without the testimony of the alleged victim, this 20 matter cannot continue to trial, and accordingly the action against Mr. Pierson is 21 dismissed, with prejudice.” (Id.) 22 III. LEGAL STANDARD 23 The purpose of summary judgment is to avoid unnecessary trials when there is no 24 dispute as to the facts before the court. Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 18 25 F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is appropriate when the pleadings, 26 the discovery and disclosure materials on file, and any affidavits “show there is no 27 The state court’s order referenced “the State’s Response and non-opposition.” (Dkt. no. 37-1 at 81.) 28 2 4 1 genuine issue as to any material fact and that the movant is entitled to judgment as a 2 matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). An issue is “genuine” 3 if there is a sufficient evidentiary basis on which a reasonable fact-finder could find for 4 the nonmoving party and a dispute is “material” if it could affect the outcome of the suit 5 under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). 6 Where reasonable minds could differ on the material facts at issue, however, summary 7 judgment is not appropriate. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 8 1995). “The amount of evidence necessary to raise a genuine issue of material fact is 9 enough ‘to require a jury or judge to resolve the parties' differing versions of the truth at 10 trial.’” Aydin Corp. v. Loral Corp., 718 F.2d 897, 902 (9th Cir. 1983) (quoting First Nat’l 11 Bank v. Cities Service Co., 391 U.S. 253, 288-89 (1968)). In evaluating a summary 12 judgment motion, a court views all facts and draws all inferences in the light most 13 favorable to the nonmoving party. Kaiser Cement Corp. v. Fishbach & Moore, Inc., 793 14 F.2d 1100, 1103 (9th Cir. 1986). 15 The moving party bears the burden of showing that there are no genuine issues 16 of material fact. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). “In 17 order to carry its burden of production, the moving party must either produce evidence 18 negating an essential element of the nonmoving party’s claim or defense or show that 19 the nonmoving party does not have enough evidence of an essential element to carry its 20 ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 21 F.3d 1099, 1102 (9th Cir. 2000). Once the moving party satisfies Rule 56’s requirements, 22 the burden shifts to the party resisting the motion to “set forth specific facts showing that 23 there is a genuine issue for trial.” Anderson, 477 U.S. at 256. The nonmoving party “may 24 not rely on denials in the pleadings but must produce specific evidence, through 25 affidavits or admissible discovery material, to show that the dispute exists,” Bhan v. NME 26 Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), and “must do more than simply show 27 that there is some metaphysical doubt as to the material facts.” Orr v. Bank of Am., 285 28 F.3d 764, 783 (9th Cir. 2002) (internal citations omitted). “The mere existence of a 5 1 scintilla of evidence in support of the plaintiff’s position will be insufficient.” Anderson, 2 477 U.S. at 252. 3 IV. DISCUSSION 4 Plaintiff’s first claim for relief under 42 U.S.C. § 1983 encompasses malicious 5 prosecution under the Fourteenth Amendment. (Dkt no. 3 ¶ 21.) Plaintiff’s fourth claim 6 for relief asserts malicious prosecution under Nevada law. (Id. ¶ 26.) These claims are 7 not well asserted in the Amended Complaint, but Plaintiff’s response clarifies that they 8 are premised on his allegations that he was prosecuted for exercising his First 9 Amendment rights. (Dkt. no. 40 at 2.) 10 Both claims turn on the lack of probable cause. A claim for malicious prosecution 11 under 42 U.S.C. § 1983 requires a showing that Defendants prosecuted Plaintiff with 12 malice and without probable cause, and Defendants did so with the intent to deny 13 Plaintiff equal protection or “another specific constitutional right.” See Freeman v. City of 14 Santa Ana, 68 F.3d 1180, 1190 (9th Cir. 1995). Under Nevada law, an essential element 15 of malicious prosecution is lack of probable cause. Chapman v. City of Reno, 455 P.2d 16 618, 620 (Nev. 1969). 17 Plaintiff cannot show the lack of probable cause element of his claim because the 18 court in the Criminal Case made a probable cause finding in binding him over for trial. 19 Plaintiff is estopped from relitigating the probable cause determination in this case. See 20 Haupt v. Dillard, 17 F.3d 285 (9th Cir. 1994); Forest v. City of Fort Bragg, 520 F. App’x. 21 616, 617 (9th Cir. 2013) (a finding of probable cause at the preliminary hearing in the 22 state court case was fully litigated and is a defense to malicious prosecution claim under 23 § 1983). In Haupt, the plaintiff was arrested and charged with the kidnapping and murder 24 of a seven-year-old boy. After a jury trial, the jury acquitted the plaintiff. He subsequently 25 asserted claims under 42 U.S.C. § 1983 for, among other claims, violation of his 26 constitutional rights to be free from unreasonable searches and seizures, and to be free 27 from malicious prosecution. On summary judgment, the district court determined that the 28 plaintiff was collaterally estopped from relitigating the probable cause determination 6 1 made at the preliminary hearing in the state criminal case. Haupt, 17 F.3d at 288-90. The 2 Ninth Circuit Court of Appeals affirmed, finding that Nevada’s requirements for collateral 3 estoppel applied to the plaintiff’s search and seizure and malicious prosecution claims, 4 collaterally estopping the plaintiff from relitigating the probable cause determination. Id. 5 In reaching this conclusion, the court rejected plaintiff’s argument that the probable 6 cause issue was not “necessarily decided,” as Nevada law requires, because he was 7 acquitted, and because the probable cause determination at his preliminary hearing was 8 not necessary to support that judgment. Id. at 289. 9 Similarly here, the dismissal of the Criminal Case does not undermine the initial 10 finding of probable cause. The state court gave as the reason for dismissal the 11 prosecution’s acknowledgment that it could not proceed to trial without the testimony of 12 the alleged victim because the court’s evidentiary ruling prevented the prosecution from 13 offering her testimony. (Dkt. no. 37-1, Exh. 19.) In fact, the district court had denied 14 Plaintiff’s request to dismiss the criminal charges due to the prosecution’s failure to 15 provide all medical documents and the alleged victim’s failure to provide the medical 16 release. (Id., Exh. 17.) The reason for the dismissal did not reverse or affect the probable 17 cause determination made after two days of evidentiary hearing during which Plaintiff’s 18 attorney in the Criminal Case had the opportunity to cross-examine Ms. Brown. (Id., Exh. 19 19.) 20 Plaintiff argues that a factual dispute exists as to the existence of probable cause 21 for his prosecution. (Dkt. no. 40 at 2.) But he offers no specific support for this 22 contention. Nor does Plaintiff point to any evidence showing that the state court’s 23 determination of probable cause lacks any support in the records before that court and 24 does not amount to prima facie evidence of probable cause in this case. 25 A plaintiff may overcome a prima facie finding of probable cause “by showing that 26 the criminal prosecution was induced by fraud, corruption, perjury, fabricated evidence, 27 or other wrongful conduct taken in bad faith.” Awabdy v. City of Adelanto, 368 F.3d 28 1062, 1067 (9th Cir. 2004); Haupt, 17 F.3d at 290 n.5. The court in Haupt provided as an 7 1 example the situation where the “[p]robable cause to continue a prosecution may 2 disappear with the discovery of new exculpatory evidence after the preliminary hearing,” 3 and where the state actors suppress this evidence after being made aware of it. Haupt, 4 17 F.3d at 290 n.5. 5 Plaintiff argues that this situation occurred in his Criminal Case because Ms. 6 Brown delayed in reporting the alleged rape and because “the prosecution’s explanation 7 was that the post-traumatic stress disorder caused her to delay her report.” (Dkt. no. 40 8 at 3.) Even accepting these allegations as true and drawing all reasonable inferences in 9 Plaintiff’s favor, these allegations do not show any discovery of new or even exculpatory 10 evidence after the preliminary hearing, any attempt by the prosecution to suppress the 11 evidence, or any other wrongful conduct by the prosecution in the Criminal Case. It is 12 undisputed that Ms. Brown’s statements to the Sheriff’s Office were that Plaintiff 13 allegedly raped her months before she filed her report. (Dkt. no. 37-1, Exh. 5.) In fact, 14 one of the Sheriff’s Office investigators questioned Ms. Brown about why she did not 15 report the allegations of sexual assault and battery to the Sheriff’s Office after they 16 occurred.3 (Id., Exh. 5, at 38.) Plaintiff does not claim that the issue of Ms. Brown’s 17 delayed reporting was not presented at the preliminary hearing or disclosed to him. 18 Plaintiff further suggests that the Special Prosecutor could not produce the medical 19 records to support her explanation that Ms. Brown experienced post-traumatic stress 20 disorder. (Dkt. no. 40 at 3.) Plaintiff’s proffered evidence, however, shows that the 21 diagnosis — post-traumatic stress disorder — was made by the prosecution’s expert, not 22 the Special Prosecutor, in offering her expert opinion of Ms. Brown’s delay in reporting. 23 (Dkt. no. 40-1, Exh. 2.) Plaintiff thus offers no evidence to dispute the Special 24 Prosecutor’s representation to Plaintiff’s counsel in the Criminal Case that all relevant 25 26 27 28 3 According to Ms. Brown, she had reported an incident in the mid-1990s, but the deputy with the Sheriff’s Office who responded called her a “liar” and no action was taken. (Dkt. no. 37-1, Exh. 15, at 38.) Ms. Brown claimed that because of that experience and because Plaintiff was “so good at convincing everyone that she was crazy,” she decided not to report the rape incident. (Id., Exh. 15, at 38.) 8 1 medical records had been produced other than records from treatment providers that 2 were not accessible without Ms. Brown’s consent. (Dkt. no. 37-1, Exh. 15.) 3 Plaintiff relies on Dias v. Elique, 436 F.3d 1125 (9th Cir. 2006), to argue that the 4 probable cause finding has no preclusive effect because of the differing burden of 5 persuasion — the probable cause finding in the Criminal Case was based on a “slight” or 6 “marginal” evidence standard while a showing of lack of probable cause in this case is 7 based on a preponderance of the evidence. (Dkt. no. 40 at 2.) In Dias, the court found 8 that an agency’s finding of fact under a substantial evidence standard is not entitled to 9 preclusive effect when the court must make a finding of fact under a preponderance of 10 the evidence standard. Dias addresses how the burden of persuasion affects issue 11 preclusion when the evidence is viewed by different tribunals under differing degrees of 12 persuasion. Dias, 436 F.3d at 1129-30. This is not the case here. In determining a lack 13 of probable cause, the Court would not be examining the same evidence as the state 14 court in the Criminal Case under a preponderance of the evidence standard. It is Plaintiff 15 who carries the burden of persuading the Court by a preponderance of the evidence that 16 there is no probable cause. 17 The Criminal Case involved one victim, who was also the main witness (i.e., Ms. 18 Brown). Based in part on the testimony of this witness, the state court determined 19 probable cause existed to bind Plaintiff over for trial. Plaintiff does not offer any evidence 20 to overcome this finding. Because Plaintiff cannot show the essential element of a lack of 21 probable cause, he cannot establish his malicious prosecution claims. In light of this 22 ruling, the Court declines to consider Defendants’ arguments as to the element of malice 23 and various defenses. 24 V. CONCLUSION 25 The Court notes that the parties made several arguments and cited to several 26 cases not discussed above. The Court has reviewed these arguments and cases and 27 determines that they do not warrant discussion as they do not affect the outcome of the 28 Motion. 9 1 2 3 It is therefore ordered that Defendants’ Motion for Summary Judgment (dkt. no. 37) is granted. The Clerk is directed to enter judgment in favor of Defendants. DATED THIS 5th day of March 2015. 4 5 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10