Palmieri v. Clark Cnty.

• Decision Date: 31 December 2015
• Docket Number: No. 65143.,65143.
• Citation: 367 P.3d 442
• Parties: Judy PALMIERI, Appellant, v. CLARK COUNTY, A Political Subdivision of the State of Nevada; and Dawn Stockman, CE096, Individually and in Her Official Capacity as an Officer Employed by the County of Clark, Respondents.
• Court: Nevada Court of Appeals

367 P.3d 442

Judy PALMIERI, Appellant,

v.CLARK COUNTY, A Political Subdivision of the State of Nevada; and Dawn Stockman, CE096, Individually and in Her Official Capacity as an Officer Employed by the County of Clark, Respondents.

No. 65143.

Court of Appeals of Nevada.

Dec. 31, 2015.

Potter Law Offices and Cal J. Potter, III, and Cal J. Potter, IV, Las Vegas, for Appellant.

Steven B. Wolfson, District Attorney, and Matthew J. Christian, Deputy District Attorney, Clark County, for Respondents.

BEFORE GIBBONS, C.J., TAO and SILVER, JJ.

OPINION

By the Court, SILVER

, J.:

Appellant Judy Palmieri was criminally charged after a search of her residence revealed several violations of the Clark County Code's provisions for the health and welfare of animals. In obtaining the warrant to search Palmieri's residence, respondents Dawn Stockman and Clark County relied in part on a tip from an informant who, Palmieri later alleged, provided a false identity when she filed a complaint against Palmieri. After Palmieri obtained the evidence underlying her allegation that the informant provided a false identity, Palmieri sued Stockman and Clark County, asserting a 42 U.S.C. § 1983

claim, a Monell¹ claim, and several state law causes of action. Respondents moved for summary judgment, which the district court granted.

On appeal, the primary issue is whether the district court erred by granting summary judgment with respect to Palmieri's § 1983

claim against Stockman based on a finding that Stockman was entitled to qualified immunity.² We hold that Stockman was entitled to qualified immunity for the following reasons: (1) Palmieri failed to make a substantial showing that Stockman knowingly and intentionally, or with a reckless disregard for the truth, included a false statement in the search warrant affidavit supporting the search warrant for Palmieri's residence; and (2) Palmieri failed to establish a genuine issue of material fact as to whether probable cause existed to support an administrative search warrant for her residence. Therefore, we conclude the district court appropriately granted Stockman and Clark County's motion for summary judgment. Accordingly, we affirm.

FACTUAL AND PROCEDURAL HISTORY

Individuals significant to this case

Respondent Dawn Stockman is a licensed veterinary technician and animal control officer for Clark County Animal Control—an agency of respondent Clark County. At the time of the events underlying this appeal, Stockman had been an animal control officer for a little more than three years. Appellant Judy Palmieri is a pet store owner and a resident of Clark County; her home was searched pursuant to a warrant obtained by Stockman. Kaitlyn Nichols is not a party to this case, but someone used her name to file a complaint against Palmieri with animal control. Prior to the events giving rise to this appeal, Nichols worked at one of Palmieri's pet stores.

The complaint and investigation

On May 10, 2010, an animal control supervisor with the City of Las Vegas, Richard Molinari, received a complaint from a woman who identified herself as Kaitlyn Nichols (the Informant) against Palmieri for alleged animal abuse. Because Palmieri is a Clark County property owner and outside the jurisdiction of the City of Las Vegas, Molinari forwarded the Informant's complaint to Clark County Animal Control. Clark County Animal Control assigned the complaint to Stockman, who called the Informant on May 10, 2010, to discuss her complaint. During the conversation, Stockman requested that the Informant prepare a written complaint. The Informant subsequently prepared a signed written statement and faxed it to Stockman. After receiving the written statement from the Informant, Stockman called the Informant once again to confirm that she received everything that the Informant had sent.

Stockman later provided the following account of her conversation with the Informant in a search warrant affidavit:

[Nichols] then told me that she use[d] to work for Mrs. Palmieri at Meadow[s] Pets. She was asked to help Mrs. Palmieri move some boxes at her place of residence. She arrived at [Palmieri's residence]. Once Ms. Nichols was inside the residence she saw several animals in the house. Ms. Nichols also told me there w[ere] several animals kept in the garage in kennels. The animals on the property looked very thin and several appeared to have mats and fecal [matter] all over them. Ms. Nichols said a lot of the animals appeared to be unhealthy. Ms. Nichols then went on to tell me Mrs. Palmieri breeds the dogs and sells them at her pet shop. Ms. Nichols also stated Mrs. Palmieri also houses animals that are sick or too young for the pet shop in her house.

To corroborate the Informant's complaint, Stockman checked property records to confirm Palmieri owned the residence identified by the Informant, and she reviewed Clark County Animal Control's records for previous citations against Palmieri. The search revealed that Palmieri owned the residence identified by the Informant, Palmieri owned a pet store, Clark County Animal Control had responded to Palmieri's residence in January 2006 regarding allegations that Palmieri had a dead animal in her garage,³ and Clark County Animal Control had received numerous health and welfare complaints regarding one of Palmieri's pet stores, Bark Avenue, including a complaint in September 2007.⁴

Stockman did not investigate the Informant's complaint further or solicit additional information from the Informant.⁵

The warrant

Based on the complaint and investigation, Stockman decided to seek a warrant authorizing the search of Palmieri's residence. Stockman prepared an "Administrative Search and Seizure Warrant" and an "Application and Affidavit for Administrative Search and Seizure Warrant," which included the above account of her conversation with the Informant and the corroborating information that Stockman gathered. Two of Stockman's supervisors and a deputy district attorney subsequently reviewed and approved Stockman's proposed search warrant and search warrant affidavit, and a district court judge signed the search warrant and authorized the search on May 18, 2010, after Stockman swore to the truth of the contents of the affidavit.

The search

Stockman executed the search warrant together with another animal control officer and an officer of the Las Vegas Metropolitan Police Department on May 19, 2010.⁶ During the search, the officers found 24 adult dogs and 5 puppies in Palmieri's house and garage. Palmieri could not provide proof that any of the animals had received a rabies vaccination

or been spayed or neutered as required by Clark County Code. The officers found that Palmieri provided the animals a sanitary environment and adequate food and water. However, because two elderly dogs looked sickly and because Palmieri could not provide proof the dogs had been to a veterinarian's office recently, the officers impounded those dogs for a welfare check by a veterinarian. The officers also impounded the five puppies because Palmieri did not have a breeding permit. As a result of the search, the officers cited Palmieri for failing to provide proof of rabies vaccination, failing to obtain a permit for intact dogs, and failing to provide proof of medical care.⁷

After the search, Palmieri questioned Stockman regarding the warrant and the Informant's complaint. In response, Stockman showed Palmieri the Informant's signed complaint, and Palmieri acknowledged that the signature on the complaint looked like Kaitlyn Nichols' signature.⁸ According to Palmieri, Stockman told her "animal control ha[d] never been able to get anything on [her] until now."⁹

The aftermath of the search

Approximately five months after the search of Palmieri's residence, Kaitlyn Nichols signed an affidavit averring that she never made a complaint regarding Palmieri to Clark County Animal Control or signed any such complaint. Nichols further indicated that she had never been to Palmieri's residence and that she believed a former coworker "who ha[d] previously stolen [her] identity and forged [her] name[ ] on bank checks" was responsible for filing the complaint against Palmieri.¹⁰

Palmieri subsequently sued Stockman and respondent Clark County. Palmieri's complaint included four claims for relief: (1) a 42 U.S.C. § 1983

claim against Stockman for violation of her constitutional rights under the Fourth and Fourteenth Amendments, (2) a Monell claim asserting § 1983 liability against Clark County, (3) a claim against Stockman encompassing several state law causes of action, and (4) a separate claim against Stockman and Clark County for "illegal search and illegal warrant."

Palmieri's deposition

During her deposition, Palmieri acknowledged that the Clark County Code requires a homeowner to obtain a special permit or a zoning variance to possess more than 3 dogs, and she acknowledged she did not obtain such a permit or variance before housing 29 animals at her residence. Palmieri also stated that, for approximately 18 years, she had been bringing animals home from her pet stores and keeping them at her residence for short periods. Palmieri further acknowledged she had been charged numerous times for health- and welfare-related violations of the Clark County Code—both personally and through her businesses.

Although Palmieri acknowledged that Clark County was not involved with all of her previous violations, she stated that "the head of Animal Control has had [her] on his particular list for many years." According to Palmieri, she is on the head of Animal Control's list because he "doesn't like women, and ... [he does not] like[ ] women involved in pet stores." She believes Clark County wants "to see [her] out of business.... [and that] the county doesn't appreciate pet stores or business—viable businesses in the county. And that's kind of their quest." Palmieri, however, explained that she did not believe Stockman was part of the conspiracy or that Stockman acted with malice...