Chachas v. City of Ely, Nev.
| Decision Date | 31 March 2009 |
| Docket Number | No. 3:07-cv-00158-LRH-VPC.,3:07-cv-00158-LRH-VPC. |
| Citation | 615 F.Supp.2d 1193 |
| Parties | George CHACHAS, Plaintiff, v. CITY OF ELY, NEVADA, et al., Defendants. |
| Court | U.S. District Court — District of Nevada |
Caren Jenkins, Patricia D. Cafferata, Jenkins Law Office, PC, Reno, NV, for Plaintiff.
Kelly G. Watson, Arthur A. Zorio, Watson Rounds, Las Vegas, NV, Aziz N. Merchant, The Merchant Law Firm, Ltd., Reno, NV, for Defendants.
Presently before the court is Defendants City of Ely, Nevada, et al.'s, (collectively "Defendants") Renewed Motion for Summary Judgment (#30). Plaintiff George Chachas has filed an opposition (# 35), to which Defendants replied (# 36). Also before the court is Plaintiff's Renewed Counter-Motion for Partial Summary Judgment (# 35). Defendants have filed an opposition (#36) to which Plaintiff replied (# 41).
This is a civil action arising out of a dispute over utility fees associated with Plaintiff's property in Ely, Nevada. In June of 1991, Plaintiff was elected Mayor of the City of Ely ("City"). (Defs.' Renewed Mot. Summ. J. (# 30), Ex. 2 at 2.) On October 16, 1992, Plaintiff was recalled from office. (Id.)
Over a decade later, Plaintiff was again elected mayor. However, Plaintiff's conduct in his position as mayor again came under scrutiny primarily because of Plaintiff's failure to pay certain utility fees owing on the Town & Country Motel in Ely, Nevada, which Plaintiff owns. On January 12, 2006, the City Council voted to hire outside legal counsel to collect the debt allegedly owed by Plaintiff for utilities provided to the Town & Country Motel. (Id., Ex. 6 at 15-16.) At the meeting on January 12, 2006, Plaintiff advocated against the proposal to hire outside legal counsel and failed to disclose that he was the owner of the Town & Country Motel. (Id., Ex. 3 at 3.) On January 26, 2006, Plaintiff vetoed the City Council's vote. (Id., Ex. 7.) On February 9, 2006, the City Council overrode Plaintiff's veto.
The City subsequently retained counsel, and on February 28, 2006, in the Justice Court of Ely, Nevada, filed a complaint against Plaintiff for unpaid water, sewer and landfill fees concerning the Town & Country Motel. (Id., Ex. 9.) The complaint also sought penalties and late fees for Plaintiff's delay in paying the fees. In total, the complaint sought $4,942.72 in unpaid fees and penalties. (Id.)
Plaintiff failed to file an answer, and as a result, on March 23, 2006, the Justice Court entered a default judgment against Plaintiff. (Id., Ex. 1.) Plaintiff filed a motion to set aside the default judgment, which the Justice Court denied. (Id., Ex. 11.) Finding Plaintiff had been properly served, the court concluded, "[Plaintiff] has had ample opportunity to dispute his fees[,] more particularly landfill, however, [he] has made an independent choice to ignore the billings of the City of Ely while still receiving the benefit for the service provided." (Id., Ex. 11 at 3.) Plaintiff has not appealed the Justice Court's rulings to the district court in the State of Nevada as permitted by Nevada Justice Court Rules of Civil Procedure 72A.
On June 20, 2007, in relation to the utility fee dispute, the Nevada Commission on Ethics ("Commission") concluded Plaintiff had wilfully violated a variety of provisions of Nevada's Ethics in Government Law. (Id., Ex. 3 at 10.) In its opinion, the Commission found the following facts: (1) Plaintiff owns the Town & Country Motel in Ely Nevada, and as the proprietor of the Motel, Plaintiff is required to pay certain utilities to the City of Ely; (2) on January 12, 2006, the City Council voted to hire outside legal counsel to collect debt allegedly owed by Plaintiff for utilities provided to the Town & Country Motel; (3) at the meeting on January 12, 2006, Plaintiff advocated against the proposal to hire outside legal counsel and failed to disclose that he was the owner of the Town & Country Motel; and (4) on January 26, 2006, Plaintiff vetoed the City Council's vote. (Id. at 3-4.)
Based on these facts, the Commission concluded that by failing to disclose his relationship to the Town & Country Motel, by advocating against hiring outside legal counsel, and by vetoing the decision to hire legal counsel, Plaintiff had willfully committed the following ethics violations: (1) a violation of Nevada Revised Statutes Section 281.481(2) for using his position in government to secure unwarranted privileges, preferences, exemptions, and advantages for himself; (2) a violation of Nevada Revised Statutes Section 281.501(4) for failing to disclose his relationship to a matter in which he has a pecuniary interest; and (3) a violation of Nevada Revised Statutes Section 281.501(2) for advocating against a decision in which he has a pecuniary interest. (Id. at 5-9) As a result of its conclusions and pursuant to Nevada Revised Statutes Section 281.551(4)(c), the Commission initiating a proceeding for Plaintiff's removal from office. (Id. at 10.) Plaintiff has not appealed the Commission's decision.
Summary judgment is appropriate only when "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 judgment as a matter of law." Fed.R.Civ.P. 56(c). In assessing a motion for summary judgment, the evidence, together with all inferences that can reasonably be drawn therefrom, must be read in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); County of Tuolumne v. Sonora Cmty. Hosp., 236 F.3d 1148, 1154 (9th Cir.2001).
The moving party bears the burden of informing the court of the basis for its motion, along with evidence showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). On those issues for which it bears the burden of proof, the moving party must make a showing that is "sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party." Calderone v. United States, 799 F.2d 254, 259 (6th Cir.1986); see also Idema v. Dreamworks, Inc., 162 F.Supp.2d 1129, 1141 (C.D.Cal.2001).
To successfully rebut a motion for summary judgment, the non-moving party must point to facts supported by the record which demonstrate a genuine issue of material fact. Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736 (9th Cir.2000). A "material fact" is a fact "that might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Where reasonable minds could differ on the material facts at issue, summary judgment is not appropriate. See v. Durang, 711 F.2d 141, 143 (9th Cir.1983). A dispute regarding a material fact is considered genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505. The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient to establish a genuine dispute; there must be evidence on which the jury could reasonably find for the plaintiff. See id. at 252, 106 S.Ct. 2505.
In the complaint, Plaintiff alleges the following claims for relief pursuant to 42 U.S.C. § 1983 for the denial of his right to equal protection of the laws in violation of the Fifth and Fourteenth Amendment to the Constitution of the United States: (1) the unequal application of landfill fees; (2) the unequal application of sewer fees; (3) the unequal application of water fees; and (4) the unequal application of business license requirements. In addition, Plaintiff alleges the following claims for relief: (1) conspiracy to deprive Plaintiff of his equal protection rights in violation of 42 U.S.C. §§ 1985, 1986; (2) conspiracy to "prevent, hinder and/or impede" Plaintiff in the discharge of his official duties in violation of 42 U.S.C. §§ 1985, 1986; (3) a violation of Plaintiff's "equal rights" and conspiracy to selectively enforce the City's business license and utility fees in violation of 42 U.S.C. §§ 1983, 1985, 1986; (4) malicious prosecution; (5) unjust enrichment; (6) harassment; (7) defamation and injury to reputation; and (8) temporary injunctive relief. Plaintiff agrees that the court should dismiss his third and sixth claims for relief for the unequal application of water fees and conspiracy to prevent Plaintiff from discharging his official duties. Accordingly, the court will dismiss the claims with prejudice. The court will address the remaining causes of action in light of the parties' arguments below.
Defendants first contend they are entitled to absolute and qualified immunity. With regard to absolute immunity, Defendants have failed to identify the basis upon which they claim such immunity. To the extent Defendants assert sovereign immunity, this doctrine does not extend to municipalities. Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 401, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979).
With regard to qualified immunity, this doctrine protects state officials from civil liability for damages resulting from discretionary acts, so long as those acts do not violate clearly established constitutional or statutory rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 817-18, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Qualified immunity is an "entitlement not to stand trial or face the other burdens of litigation" and is an appropriate basis for granting summary judgment. Saucier v. Katz, 533 U.S. 194, 200-02, 121...
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