Carter v. Lamb
| Decision Date | 12 January 1995 |
| Docket Number | No. CV-S-93-00721-PMP (LRL).,CV-S-93-00721-PMP (LRL). |
| Citation | 872 F. Supp. 784 |
| Parties | Carole Marsh CARTER, Plaintiff, v. Floyd LAMB, in his official capacity as a member of the Board of Commissioners of Lincoln County, Nevada, and in his individual capacity; Yvonne Culverwell, in her official capacity as a member of the Board of Commissioners of Lincoln County, Nevada; Edward Wright, in his official capacity as a member of the Board of Commissioners of Lincoln County, Nevada; and Lincoln County, Nevada, Defendants. |
| Court | U.S. District Court — District of Nevada |
Eric Zubel, Eric Zubel, Chtd., Las Vegas, NV, for plaintiff.
Thomas P. Beko, Erickson, Thorpe & Swainston, Ltd., Reno, NV, for defendants.
Before the Court is a Motion for Summary Judgment (# 46) filed by Defendants on October 11, 1994. Plaintiff Carole Marsh Carter filed an Opposition (# 51) on November 4, 1994, and an Errata (# 52) thereto on November 14, 1994. Defendants filed a Reply (# 57) on December 9, 1994.
According to the facts as presented in Plaintiff's Second Amended and Supplemental Complaint (# 25), Plaintiff resides on a ranch located on an 80 acre parcel of land, bisected by the boundary between Nye and Lincoln Counties. Plaintiff has been the owner and occupier of the property since November 13, 1985. The nearest road which provides access to and egress from Plaintiff's homestead is commonly known as Sand Springs Road. Sand Springs Road accesses Highway 375, which leads to the unincorporated town of Rachel, Nevada, where Plaintiff and others in the area obtain food and supplies. Apparently the only other access to a paved roadway from Plaintiff's residence is over the Mail Summit Road which terminates at State Route 318.1 Plaintiff alleges that the distance from Plaintiff's residence to State Route 318 is 10 miles longer than the distance from her residence to Highway 375, and that travel along Mail Summit Road is "extremely treacherous and hazardous ... when wet or covered with snow." See Plaintiff's Second Amended and Supplemental Complaint (# 25), at 3.
Pursuant to a contractual agreement between Nye and Lincoln Counties, Lincoln County has for many years removed snow from roadways in certain areas of Nye County. It had been the practice of the Lincoln County Road Department to perform this agreement with Nye County, and in past years, to remove snow from route 375 over the Sand Springs Road to provide access to Plaintiff's residence in Nye County. Since 1984, this alleged contractual agreement provided that the Lincoln County Road Department would charge the Nye County Road Department for the use of snow removal equipment and the time spent in its operation over the Nye County Roadways.
On December 7, 1992, a severe snow storm struck the vicinity of Plaintiff's ranch. On December 10, 1992, pursuant to the direction of Les McCroskey, then road master of Lincoln County, the snow was removed from the Sand Springs Road in order to provide Plaintiff and others with access to Rachel, Nevada for food and supplies. Lincoln County dispatched its snow removal equipment into Nye County for this purpose and removed the snow from the Pine Creek Canyon and Cottonwood Roads, later charging Nye County for this service, which charges were paid by Nye County.
On January 5 and 6, 1993, there was another snowstorm. Lincoln County, however, apparently did not remove the snow on Sand Springs Road. Consequently, Plaintiff claims to have experienced great difficulty negotiating the Sand Springs Road to Rachel, Nevada. Upon inquiry by Plaintiff, Defendant Floyd Lamb allegedly advised her that because she did not pay adequate taxes in Lincoln County, there existed no obligation on the part of the County to remove the snow from that roadway. Plaintiff claims that Lamb then ordered McCroskey not to plow the Sand Springs Road.
Plaintiff was able to gain access to Route 318 over the next month, but with "extreme difficulty." Plaintiff claims to have contacted Les McCroskey and apprised him of the situation, and on January 13, 1993, the Sand Springs road was plowed, apparently contrary to Lamb's instructions. Between January 13 and January 20, 1993, snow again rendered the Sand Springs Road impassible. Defendant Lamb allegedly refused to allow the Lincoln County Road Department to remove snow from either the Mail Summit or Sand Springs Roads any closer than 7 miles to Plaintiff's residence.
On January 28, 1993, Plaintiff informed Ed Wright, a Lincoln County Commissioner, of her need to obtain assistance from Lincoln County in order to have access to her ranch or to evacuate herself, her dogs and her livestock. Plaintiff claims that Wright promised assistance, but none was forthcoming.
It was now the beginning of February and snow continued to accumulate, yet the Sand Springs Road remained unplowed. On February 3, 1993, a friend of Plaintiff's allegedly contacted the Lincoln County road department and notified them of the impassible condition of the Sand Springs Road. As a result, Lincoln County sent a snowplow operator to survey the road, and on the next day, the road was plowed for the third time. On that day, Plaintiff gave Dave Shumway, the snowplow operator, three letters to be delivered to the members of the Lincoln County Board of Commissioners describing her predicament and the road conditions.
Snow continued to accumulate during the month of February, and Lincoln County did not plow the Sand Springs Road. Plaintiff alleges that her physical and emotional condition deteriorated, as she was apparently unable to obtain food and supplies. By February 28, 1993, Plaintiff was unable to care for herself, her livestock and her dogs. Plaintiff finally had to be assisted by a friend to Rachel, Nevada where she remained until May 25, 1993.
On August 5, 1993, Plaintiff filed her original Complaint (# 1) alleging that Defendants deprived her of various constitutional rights in violation of 42 U.S.C. § 1983. Specifically, Plaintiff alleged that Defendants' conduct: 1) deprived her of all viable use and enjoyment of her property in violation of the Fourteenth Amendment's due process clause ("Use and Enjoyment due process claim"); 2) deprived her of her legal entitlement to have the roads in question plowed also in violation of the Fourteenth Amendment's due process clause ("Legal Entitlement due process claim"); 3) denied her equal protection; and 4) deprived her of her right to travel and freely associate under the First Amendment. Plaintiff also asserted a claim against Defendant Floyd Lamb in his individual capacity and a state law claim for intentional infliction of emotional distress.
In a prior Order (# 22) addressing a Motion to Dismiss filed by Defendants, the Court dismissed Plaintiff's Use and Enjoyment due process claim, both to the extent Plaintiff attempted to allege a procedural due process violation and to the extent she attempted to allege a substantive due process violation,2 but granted leave to amend the procedural due process claim.3 The Court also dismissed Plaintiff's equal protection and First Amendment claims, but granted leave to amend to clarify the equal protection claim. The Court, however, refused to dismiss Plaintiff's Legal Entitlement due process claim.
Thereafter, on March 31, 1994, Plaintiff filed her Second Amended and Supplemental Complaint (# 25) in which she again sought an injunction to force Lincoln County to plow the subject roads. She also realleged a violation of procedural due process in that she had a legal entitlement to have the roads plowed into her Nye County property, and again advanced her substantive due process claim based upon the right to receive public services such as snow removal. She also reasserted her equal protection claim and her state law claim of intentional infliction of emotional distress. Defendants now seek summary judgment on Plaintiff's federal causes of action.
Pursuant to Federal Rule of Civil Procedure 56, summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."
The party moving for summary judgment has the initial burden of showing the absence of a genuine issue of material fact. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir.1982). Once the movant's burden is met by presenting evidence which, if uncontroverted, would entitle the movant to a directed verdict at trial, the burden then shifts to the respondent to set forth specific facts demonstrating that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). If the factual context makes the respondent's claim implausible, that party must come forward with more persuasive evidence than would otherwise be necessary to show that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986); California Arch. Bldg. Prod. v. Franciscan Ceramics, 818 F.2d 1466, 1468 (9th Cir.1987), cert. denied, 484 U.S. 1006, 108 S.Ct. 698, 699, 98 L.Ed.2d 650 (1988).
If the party seeking summary judgment meets this burden, then summary judgment will be granted unless there is significant probative evidence tending to support the opponent's legal theory. First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 1593, 20 L.Ed.2d 569 (1968); Commodity Futures Trading Comm'n v. Savage, 611 F.2d 270 (9th Cir. 1979). Parties seeking to defeat summary judgment cannot stand...
To continue reading
Request your trial
-
Pheasant Run Condo. Homes v. City of Brookfield, 07-C-0082.
...Borough, 313 F.3d 157, 160 (3d Cir.2002) (same); Goldstein v. City of Chicago, 504 F.2d 989, 991 (7th Cir.1974) (same); Carter v. Lamb, 872 F.Supp. 784, 790 (D.Nev.1995) (stating that snow removal is not a fundamental right). Because the City's alleged policy does not implicate a suspect cl......