Warren v. Lindsey et al, No. 3:2013cv00333 - Document 124 (D. Nev. 2015)

Court Description: ORDER granting 110 Motion for Summary Judgment; granting 111 Motion for Leave to File Excess Pages. Signed by Judge Robert C. Jones on 2/10/2015. (Copies have been distributed pursuant to the NEF - KR)
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Warren v. Lindsey et al Doc. 124 1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 6 7 8 9 10 11 ______________________________________ ) ) STEPHEN WARREN, ) ) Plaintiff, ) ) vs. ) ) AUSTIN EUGENE LINDSEY et al., ) ) Defendants. ) ) 3:13-cv-00333-RCJ-VCF ORDER 12 This case arises out of an allegedly false report of theft. Pending before the Court is 13 Defendants’ Motion for Summary Judgment (ECF No. 110). For the reasons given herein, the 14 Court grants the motion. 15 I. FACTS AND PROCEDURAL HISTORY 16 In October 2010, 1 Plaintiff Stephen Warren made a verbal agreement with Defendants 17 Austin and Deborah Lindsey to rent, and later purchase, a fifth wheel trailer (the “Trailer”) from 18 the Lindseys. (Third Am. Compl. ¶¶ 3–4, 8, ECF No. 85). Plaintiff and his daughter, on whose 19 behalf Plaintiff also brings the present suit, took possession of the trailer, put their personal 20 property into it, and began living in it in the City of Carlin, Nevada (the “City”), paying the 21 Lindseys $400 per month, pursuant to the agreement, for ten months. (Id. ¶¶ 9–10). 22 23 24 1 Plaintiff has alleged the agreement was entered into in October 2011, but that is probably a typographical error, as the relevant subsequent events are alleged to have begun during the spring of 2011. 1 of 8 Dockets.Justia.com 1 On June 13, 2011, Plaintiff, with Lindsey’s knowledge (Plaintiff does not allege which 2 Lindsey), took the Trailer to California to secure financing for the purchase. (Id. ¶ 11). On June 3 15, 2011, Lindsey (Plaintiff does not allege which Lindsey) reported to the Sheriff of Elko 4 County that Plaintiff had stolen the Trailer. (Id. ¶ 12). Plaintiff was current on his rent payments 5 at the time. (Id. ¶ 12.1). In the police report, Lindsey (Plaintiff does not allege which Lindsey), 6 stated that he had loaned the Trailer to a friend but did not disclose his agreement with Plaintiff 7 or that he knew why Plaintiff had taken the Trailer to California. (Id. ¶ 12.2). 8 On June 23, 2011, Warren was arrested by the Monterey County Sheriff in California due 9 to the police report filed in Nevada. (Id. ¶ 13). The sheriff released Plaintiff later that day. 10 (Id.¶ 13.1). Defendant William Bauer, the Chief of Police of the City caused a “hold” to be 11 placed against the Trailer through NCIC, a national crime reporting and registration network. (Id. 12 ¶¶ 6, 13.2). The “hold” caused the Monterey County Sheriff’s Department to seize the Trailer, 13 as well as Plaintiff’s possessions therein, without a warrant. (Id. ¶ 13.3–13.4). Bauer told the 14 Monterey County Sheriff that he was processing a criminal complaint against Plaintiff. (Id. 15 ¶ 14.1). The Elko County District Attorney expedited a criminal arrest warrant, and on January 16 19, 2012, Plaintiff was arrested in California based on a warrant for felony theft issued in 17 Nevada. (Id. ¶¶ 14.2, 15). As a result, Plaintiff was incarcerated for twenty-one days and 18 extradited to Elko County, Nevada, when he was granted bail. (Id. ¶ 15.2). On July 3, 2011, 19 Bauer instructed the Monterey County Sheriff’s Department to release the Trailer to Defendant 20 Foremost Insurance Co. Grand Rapids Michigan (“Foremost”). (Id. ¶ 16). 21 Once the Elko County authorities confirmed, on or about November 26, 2012, that 22 Plaintiff had a verbal agreement with Lindsey to rent and purchase the Trailer, they dropped the 23 charges against him. (Id. ¶ 17). Plaintiff believes that the Lindseys submitted a claim to 24 Foremost based on the alleged theft of the Trailer, that Foremost paid the Lindseys for the 2 of 8 1 alleged loss, and that Foremost then took possession of the Trailer from the Monterey County 2 Sheriff’s Department because it believed itself to be subrogated to the Trailer. (Id. ¶¶ 18–19). At 3 some unknown time thereafter, Foremost caused the Trailer, and Plaintiff’s possessions therein, 4 to be sold by unknown means to unknown persons for an unknown price. (Id. ¶ 20). 5 The Third Amended Complaint (“TAC”) lists eight claims: (1) malicious prosecution 6 (Lindsey); (2) intentional infliction of emotional distress (“IIED”) (Lindsey); (3) conversion 7 (Lindsey and Foremost); (4) abuse of process (Lindsey); (5) defamation (Lindsey); (6) breach of 8 contract (Lindsey); (7) violation of the Fourth Amendment under 42 U.S.C. § 1983 (Bauer and 9 the City); and (8) violation of Nevada Revised Statutes section (“NRS”) 179.105 (Bauer and the 10 City). 2 The Lindseys and Bauer have separately filed counterclaims for equitable indemnity and 11 contribution, arguing that Plaintiff in fact stole the Trailer. Bauer and the City have now moved 12 for summary judgment. 13 II. 14 LEGAL STANDARDS A court must grant summary judgment when “the movant shows that there is no genuine 15 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 16 Civ. P. 56(a). Material facts are those which may affect the outcome of the case. See Anderson 17 v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if 18 there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. See 19 id. A principal purpose of summary judgment is “to isolate and dispose of factually unsupported 20 claims.” Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). In determining summary 21 judgment, a court uses a burden-shifting scheme: 22 23 24 2 The Court has separated claims seven and eight differently from how Plaintiff has separated them in the TAC, because the alleged Fourth Amendment violation is different from the alleged state statutory violation, and only the former may be prosecuted via § 1983. Plaintiff had grouped the claims together under claim seven and listed claim eight as a separate Monell claim against the City. 3 of 8 3 When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial. In such a case, the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case. 4 C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations 5 and internal quotation marks omitted). In contrast, when the nonmoving party bears the burden 6 of proving the claim or defense, the moving party can meet its burden in two ways: (1) by 7 presenting evidence to negate an essential element of the nonmoving party’s case; or (2) by 8 demonstrating that the nonmoving party failed to make a showing sufficient to establish an 9 element essential to that party’s case on which that party will bear the burden of proof at trial. 1 2 10 See Celotex Corp., 477 U.S. at 323–24. If the moving party fails to meet its initial burden, 11 summary judgment must be denied and the court need not consider the nonmoving party’s 12 evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970). 13 If the moving party meets its initial burden, the burden then shifts to the opposing party 14 to establish a genuine issue of material fact. See Matsushita Elec. Indus. Co. v. Zenith Radio 15 Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, the opposing 16 party need not establish a material issue of fact conclusively in its favor. It is sufficient that “the 17 claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing 18 versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 19 626, 631 (9th Cir. 1987). In other words, the nonmoving party cannot avoid summary judgment 20 by relying solely on conclusory allegations unsupported by facts. See Taylor v. List, 880 F.2d 21 1040, 1045 (9th Cir. 1989). Instead, the opposition must go beyond the assertions and 22 allegations of the pleadings and set forth specific facts by producing competent evidence that 23 shows a genuine issue for trial. See Fed. R. Civ. P. 56(e); Celotex Corp., 477 U.S. at 324. 24 4 of 8 1 At the summary judgment stage, a court’s function is not to weigh the evidence and 2 determine the truth, but to determine whether there is a genuine issue for trial. See Anderson, 477 3 U.S. at 249. The evidence of the nonmovant is “to be believed, and all justifiable inferences are 4 to be drawn in his favor.” Id. at 255. But if the evidence of the nonmoving party is merely 5 colorable or is not significantly probative, summary judgment may be granted. See id. at 249–50. 6 III. ANALYSIS 7 A. The Fourth Amendment Claim 8 Even where there has been a constitutional violation, individuals are entitled to qualified 9 immunity unless the state of the law at the time of the violation was clear enough that a 10 reasonable person in the defendant’s position would have known his actions violated the 11 plaintiff’s rights. Saucier v. Katz, 533 U.S. 194, 201 (2001). A court has discretion to analyze 12 the qualified immunity issue before addressing whether there was a violation. Pearson v. 13 Callahan, 555 U.S. 223, 236 (2009). “A Government official’s conduct violates clearly 14 established law when, at the time of the challenged conduct, ‘[t]he contours of [a] right [are] 15 sufficiently clear’ that every ‘reasonable official would have understood that what he is doing 16 violates that right.’ We do not require a case directly on point, but existing precedent must have 17 placed the statutory or constitutional question beyond debate.” Ashcroft v. Al-Kidd, 131 S. Ct. 18 2074, 2083 (2011) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)) (citation omitted; 19 alterations in Ashcroft). “Qualified immunity gives government officials breathing room to 20 make reasonable but mistaken judgments about open legal questions. When properly applied, it 21 protects ‘all but the plainly incompetent or those who knowingly violate the law.’” Id. at 2085 22 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). 23 24 In its discretion, the Court analyzes the issue of the constitutional violation first and finds there to be no genuine issue of material fact that there was none. Plaintiff’s allegations that the 5 of 8 1 Lindseys had reported the Trailer stolen to Bauer are an admission on the face of the TAC that 2 there was probable cause, and Plaintiff adduces no contrary evidence. In the absence of 3 suspicious circumstances known to the officer, a non-anonymous report of the theft of a 4 particular piece of property by a particular person is sufficient without more to cause a 5 reasonable officer to believe that there is a fair probability that the accused committed the theft 6 under the totality of the circumstances. See Illinois v. Gates, 462 U.S. 213, 238–39 (1983). 7 Bauer attests that Austin Lindsey, whom he had never met, reported the theft to him on 8 June 15, 2011. (See Bauer Aff. ¶ 6–8, ECF No. 110-1). Lindsey reported that Plaintiff was a 9 mechanic Lindsey had hired at Dale White Motors in Elko, that Lindsey had loaned him the 10 Trailer as a temporary residence, and that on June 13, 2011, Plaintiff had called in sick to work 11 and failed to appear at work on June 14, 2011. (Id. ¶¶ 9–12). One of the other mechanics had 12 told Lindsey that Plaintiff’s rented trailer space at Yorkshire Villas Trailer park was empty, and 13 that he had seen Plaintiff fueling up at 3:00 p.m. on June 13, 2011 with the Trailer in tow. (Id. 14 ¶ 13). Bauer contacted the Wells Rural Electric Co. and discovered that Plaintiff had left owing 15 them money. (Id. ¶ 17). Bauer contacted the U.S. Post Office in Carlin on June 23, 2011 and 16 confirmed that Plaintif had closed his post office box as of June 17, 2011 and left a forwarding 17 address of a post office box in Aromas, California. (Id. ¶ 18). On June 23, 2011, Bauer called 18 the Monterey County Sheriff’s Department and asked if they could assist in locating the Trailer, 19 which they did within half an hour, taking Plaintiff into custody. (Id. ¶¶ 20–21). Bauer then 20 decided to make a warrant application for Plaintiff’s arrest. (Id. ¶ 22). These facts, if uncontested 21 at trial, would entitle Bauer (and therefore the City as to a Monell claim) to summary judgment 22 on the issue of probable cause to cause the arrest of Plaintiff and the seizure of the Trailer. 23 Plaintiff provides no evidence in opposition tending to show that Bauer had knowledge of 24 Plaintiff’s alleged permission to take the Trailer to California. The excerpt of Bauer’s deposition 6 of 8 1 testimony does not contradict his affidavit but in fact indicates additional investigation 2 undertaken by Bauer that confirmed that Plaintiff had left without notice, i.e., he had left the 3 trailer park owing them money, as well, and his daughter was absent from school without notice. 4 (See Bauer Dep. 11, ECF No. 121-1). All of the evidence before Bauer indicated that Plaintiff 5 had stolen the Trailer. Taking all of the evidence he had at that time together, the conclusion that 6 Plaintiff had stolen the Trailer was not only reasonable but practically compelled. And as Bauer 7 correctly noted in response to a hypothetical question by counsel, the fact, if known to him, that 8 Plaintiff had been paying rent for the Trailer would by itself have little bearing on whether 9 Plaintiff had stolen the Trailer under the circumstances. (See id. at 16). Bauer noted that if 10 Lindsey had told him that Lindsey had received a phone call from a bank indicating that Plaintiff 11 was at the bank negotiating financing for the Trailer, it would have affected his decision on how 12 to proceed. But there is no evidence adduced that Bauer was aware of that alleged phone call to 13 Lindsey. Finally, the report of the police practices expert is unhelpful. What does and does not 14 constitute a Fourth Amendment violation is not a question on which expert opinion is helpful. 15 As the Court of Appeals for the District of Colombia has aptly noted, “[e]ach courtroom comes 16 equipped with a ‘legal expert,’ called a judge, and it is his or her province alone to [determine] 17 the relevant legal standards.” Burkhart v. Wash. Metro. Area Transit Auth., 112 F.3d 1207, 1213 18 (D. C. Cir. 1997). Bauer and the City are entitled to summary judgment on the Fourth 19 Amendment claim. 20 B. 21 The statute reads in its entirety: 22 All property or things taken on a warrant must be retained in an officer’s custody, subject to the order of the court to which the officer is required to return the proceedings before the officer, or of any other court in which the offense in respect to which the property or things are taken is triable. If it appears that the property taken is not the same as that described in the warrant, or that there is no probable cause for believing the existence of the grounds on which the warrant 23 24 The NRS 179.105 Claim 7 of 8 1 2 3 was issued, the magistrate shall cause it to be restored to the person from whom it was taken. However, no search warrant shall be quashed by any magistrate or judge within this State nor shall any evidence based upon a search warrant be suppressed in any criminal action or proceeding because of mere technical irregularities which do not affect the substantial rights of the accused. 4 Nev. Rev. Stat. § 179.105 (1967). On its face, the statute appears to require injunctive relief in 5 appropriate circumstances, but Plaintiff alleges that Bauer and the City no longer have the Trailer 6 or its contents (and, in fact, that they never had them, but that the Monterey County Sheriff’s 7 Department did), and the statute does not appear to create any action for damages. The Nevada 8 Supreme Court has only cited to the statute once, in an unpublished case that may not be cited as 9 legal authority and for a proposition not at issue here. The Court perceives no intent by the 10 Nevada Legislature to create a private right of action via this statute. Also, as Defendants note, 11 § 1983 provides this Court jurisdiction over claims of violations of federal law, not claims of 12 violations of state law. Ove v. Gwinn, 264 F.3d 817, 824–25 (9th Cir. 2001). In any case, the 13 Court has adjudicated the probable cause issue against Plaintiff, supra. CONCLUSION 14 15 16 17 18 19 20 IT IS HEREBY ORDERED that the Motion for Summary Judgment (ECF No. 110) is GRANTED. IT IS FURTHER ORDERED that the Motion for Leave to File Excess Pages (ECF No. 111) is GRANTED. IT IS SO ORDERED. Dated this 4th day of February, 2015. Dated this 10th day of February, 2015. 21 22 _____________________________________ ROBERT C. JONES United States District Judge 23 24 8 of 8