Boney v. Valline

Decision Date22 January 2009
Docket NumberNo. 3:05-cv-00683-RCJ-VPC.,3:05-cv-00683-RCJ-VPC.
Citation597 F.Supp.2d 1167
PartiesGayleen BONEY, Plaintiff, v. Walter VALLINE, Defendant.
CourtU.S. District Court — District of Nevada

Mitchell C. Wright, Wright Law Offices, Paul J. Malikowski, Law Office of Paul Joseph Malikowski, Reno, NV, for Plaintiff.

Charles R. Zeh, Zeh Saint-Aubin Spoo, Reno, NV, for Defendant.


ROBERT C. JONES, District Judge.

Before the Court is Defendant Officer Walter Valline's Motion for Summary Judgment. (# 52). Plaintiff Gayleen Boney filed the present lawsuit against Defendant, seeking damages for Defendant's alleged violation of her First and Fourth Amendment rights in connection with her arrest and son's death, which occurred on July 15, 2004. Having considered the parties' papers, relevant legal authority, and the record in this case, the Court GRANTS Defendant's motion.


On April 20, 2004, Defendant began employment as a Walker River Tribal Police Officer, which provides law enforcement services on the Walker River Paiute Tribal Reservation (the "Reservation"). (# 53, Ex. 8, Valline Aff. ¶ 2). The Walker River Paiute Tribe (the "Tribe") is a federally recognized tribe. (# 52, Ex. 8, Reymus Aff. ¶ 2). Within the first few months of Defendant's employment, Defendant had several encounters with Plaintiffs family.

On April 21, 2004, Defendant and Chief Dean Pennock, who was Police Chief of the Tribe at that time, were summoned to apprehend Plaintiff's ex-husband, Norman Boney, Sr., who was drunk and belligerent. (# 52, Ex. 6, Pennock Aff. ¶ 6). Although Boney, Sr. was ultimately apprehended, during that encounter, Boney, Sr. tried to escape the officers' custody and punched Defendant in the nose. (See id.). On May 30, 2004, Plaintiff submitted a letter to Chief Pennock, alleging that Defendant employed excessive force against her exhusband on April 20, 2004. (# 19, Ex. E). Chief Pennock determined that during the April 20, 2004 incident, Defendant had conducted himself properly and that the force Defendant had used was warranted under the circumstances. (Pennock Aff. ¶ 7; # 19, Ex. F). As a result, Defendant was not disciplined for this incident. (Pennock Aff. ¶ 10).

On May 29, 2004, Defendant was summoned because Boney, Sr. was reportedly driving drunk around the Reservation. (Valline Aff. ¶¶ 4-5). Defendant found Boney, Sr. driving with two teenage girls, who were later released to their parents. (See id.). Defendant, who was accompanied by Officer Elliot, apprehended Boney, Sr. for suspicion of drunk driving. (See id.). The officers discovered drug paraphernalia and empty beer bottles in Boney, Sr.'s vehicle. (See id.). As a result, Officer Elliot, as the senior officer, determined that the vehicle needed to be impounded. (Valline Depo., 10/25/07, at 199:21-23; 201:15-18).

Melissa Boney, Plaintiffs daughter, telephoned Defendant to request that she be able to pick up the vehicle and that the vehicle not be impounded. (See id. at 198-204). Because drug paraphernalia was discovered in the vehicle, however, her request was denied. (See id. at 198:5-18). Defendant told Melissa Boney that the vehicle was going to be impounded and that if she showed up at the police station to pick up the car, she would be arrested. (See id. at 202-03). Plaintiff's son, Norman "Manny" Boney, Jr., was also on the telephone call. When Defendant warned Melissa Boney to not come down to the station, Manny jumped into the conversation and told Defendant that Manny "would come down [to the police station] and kick [his] fucking ass if [Defendant] didn't give her the truck." (See id. at 204:9-19). Defendant later had a 3-way telephone conversation with Plaintiff, Melissa Boney, and Manny. (Valline Depo., 12/11/07, at 94-95). According to Plaintiff, Defendant threatened Manny during the second telephone conversation by telling Manny, "I'll come and drug test you right now!" (# 19, Ex. E). In her May 30, 2004 letter, Plaintiff also complained about the manner in which Defendant handled himself in his telephone conversations with herself and her children. (See id.). Chief Pennock found Plaintiffs complaint about the telephone calls to be "wanting" and that it did not warrant any discipline. (Pennock Aff. ¶¶ 9-10).

On June 10, 2004, Defendant was dispatched to the residence of Boney, Sr. (Valline Aff. ¶ 6). Boney, Sr. was found unconscious and was taken away by medical personnel. Medical records revealed that Boney, Sr. had passed out from alcohol consumption. (# 52, Ex. 2). During this incident, Plaintiff arrived at Boney, Sr.'s residence. Because there was a restraining order between Plaintiff and her ex-husband, Defendant warned Plaintiff that she would violate the restraining order if she approached Boney, Sr. and that he would have to arrest her. (Gayleen Boney Depo., 9/17/07, at 149:17-151:2). Plaintiff became upset and told Defendant to go ahead and do it. (See id.). As a result, Defendant handcuffed Plaintiff and placed her in the back of his squad car for approximately twenty minutes. (See id.). Plaintiff did not submit a complaint about this incident. (See id. at 154:23-25; 155:1-16).

On July 15, 2004, Defendant responded to a call from Plaintiff in which Plaintiff expressed concern that Boney, Sr. was driving drunk on the Reservation and that she did not want the vehicle to be impounded if Boney, Sr. was arrested. (See id. at 140:20-142:2). Chief Pennock sent Defendant to address the matter, as driving intoxicated on the Reservation was a violation of tribal law. (Pennock Aff. ¶ 17). Defendant contacted Officer Yocum for assistance. (Valline Depo., 12/11/07, 122:3-20). Besides Chief Pennock, Defendant and Officer Yocum were the only officers on duty at that time. (Yocum Aff. ¶ 3; Pennock Depo. at 183-84; Valline Depo., 12/11/07 at 111:16-20).

Upon arriving at the residence, Defendant observed that both Boney, Sr. and Manny were present. (Valline Depo., 12/11/07, 123:25-125:5). Boney, Sr. appeared to be intoxicated. Upon Defendant's arrival, Manny became angry and started yelling at Defendant. Melissa Boney and a friend, Charissa Dunnett, also arrived at the residence shortly after Defendant's arrival. (Dunnett Depo. at 35-36). The details of what happened are in dispute, but soon after Defendant arrived at the scene, Defendant employed deadly force against Manny, shooting Manny multiple times. (Dunnett Depo. at 55-65; Valline Depo., 12/11/07 at 123-35).

Shortly after Defendant employed deadly force against Manny, Plaintiff arrived upon the scene. Upon seeing her son injured and on the ground, she became emotional and angry. (Valline Depo., 12/11/07, at 135). Plaintiff began to berate Defendant while at the same time trying to tend to her son. Defendant pointed his gun at Plaintiff and told her to get back. (Valline Depo., 12/11/07, at 135). Officer Yocum and Chief Pennock then arrived. (See id. at 135-36). Plaintiff was yelling at Plaintiff, calling the officers killers, and threatening the officers. (Yocum Aff. at ¶ 12). To prevent the escalation of a conflict between Plaintiff and Defendant and to calm down Plaintiff, Chief Pennock, with the assistance of Officer Yocum, restrained Plaintiff and placed her in the rear of Defendant's squad car. (See id. at 140:3-7, 141, 142:1-8). Because of her anger at Defendant, Pennock ordered Defendant to stay away from Plaintiff. (Pennock Depo. at 201:1-12).

On December 19, 2005, Plaintiff filed her Complaint against Defendant (# 1), which she subsequently amended (# 19). Plaintiff has brought two claims against Defendant. First, Plaintiff has alleged that Defendant violated her First Amendment rights by retaliating against her by shooting her son Manny in response to her complaints about Defendant's conduct. Second, Plaintiff alleges that Defendant violated her Fourth Amendment rights by unlawfully arresting her. On January 18, 2007, the Court denied Defendant's Motion to Dismiss (# 27). On March 11, 2008, Defendant filed his Motion for Summary Judgment. (# 52).


The Court should grant summary judgment if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed.R. Civ. P. 56(c). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A fact is material if it might affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In support of its motion for summary judgment, the moving party need not negate the opponent's claim. See Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The moving party will be entitled to judgment if the evidence is not sufficient for a jury to return a verdict in favor of the opponent. See Anderson, 477 U.S. at 249, 106 S.Ct. 2505.

When a properly supported motion for summary judgment has been presented, the adverse party "may not rely merely on allegations or denials in its own pleading." Fed.R.Civ.P. 56(e). Rather, the nonmoving party must set forth "specific facts" demonstrating the existence of a genuine issue for trial. Id.; Anderson, 477 U.S. at 256, 106 S.Ct. 2505. A party cannot create a genuine issue for trial by asserting "some metaphysical doubt" as to the material facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Nor can a party create a genuine issue of material fact by merely discrediting the testimony proffered by the moving party, which does not usually constitute a sufficient response to a motion for summary judgment. See Anderson, 477 U.S. at 256-57, 106 S.Ct. 2505.

To survive a motion for summary judgment, the adverse party must present affirmative evidence, which "is to be believed" and from which all "justifiable inferences" are to be...

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