Garmong v. State

• Decision Date: 22 March 2021
• Docket Number: No. 80483-COA,80483-COA
• Citation: 482 P.3d 1221 (Table)
• Parties: Gregory O. GARMONG, Appellant, v. The STATE of Nevada; the Third Judicial District Court of the State of Nevada, in and for the County of Lyon; and the Honorable Leon Aberasturi, District Judge, Respondents.
• Court: Nevada Court of Appeals

482 P.3d 1221 (Table)

Gregory O. GARMONG, Appellant,

v.The STATE of Nevada; the Third Judicial District Court of the State of Nevada, in and for the County of Lyon; and the Honorable Leon Aberasturi, District Judge, Respondents.

No. 80483-COA

Court of Appeals of Nevada.

FILED MARCH 22, 2021

Carl M. Hebert

Attorney General/Carson City

Attorney General/Las Vegas

AMENDED ORDER OF AFFIRMANCE AND ORDER DENYING¹ REHEARING

Prior to the instant action, Garmong filed a petition for a writ of prohibition or mandamus, challenging the Lyon County Board of Commissioners’ issuance of a special use permit.² The permit allowed the Smith Valley Fire Protection District and Verizon Wireless to construct a cellular tower in Smith Valley. The district court denied the writ petition. In so doing, the district court concluded that "(1) Garmong's claims challenging the Lyon County Board of Commissioners’ approval of the special use permit was time barred by NRS 278.0235 ; and (2) Smith Valley Fire District had the inherent authority to lease its land to Sacramento Valley Limited Partnership, d/b/a Verizon Wireless." Garmong v. Lyon Cty. Bd. of Comm'rs , Docket No. 74644 (Order of Affirmance, May 3, 2019). On appeal, the Nevada Supreme Court concluded that the district court had reached the correct result, albeit for the wrong reason, and affirmed the district court's decision on the basis that Garmong lacked standing to bring the writ petition. Id.

Thereafter, Garmong filed a complaint against the State of Nevada, the Third Judicial District Court, and the Honorable Judge Leon Aberasturi, the judge who denied Garmong's initial writ petition (collectively, "respondents"). Garmong's complaint was filed in Judge Schlegeimilch's department, the only other department in the Third Judicial District Court. His complaint alleged respondents violated his due process and equal protection rights under the Fifth and Fourteenth Amendments of the United States Constitution in violation of 42 U.S.C. § 1983, and article I, section 8(5) of the Nevada Constitution. Respondents separately filed motions to dismiss, arguing they were entitled to different forms of immunity, but the district court did not immediately entertain or rule on the motions.

Garmong then filed a declaration of grounds for judicial disqualification under NRS 1.235 (the "disqualification matter"), questioning Judge Schlegelmilch's impartiality because he was an "officer" of a party to the lawsuit—the Third Judicial District Court. Because there was no other judge available to preside over the disqualification matter, the district court transferred it to the supreme court. The supreme court denied Garmong's motion to disqualify Judge Schlegelmilch, concluding he failed to show disqualification was warranted pursuant to NRS 1.230. In the Matter of Third Judicial District Court Case No. 18-CV-00674 (Order Denying Declaration for Disqualification, May 17, 2019).

Thereafter, the district court decided to entertain respondents’ motions to dismiss. In so doing, it ordered the parties to file supplemental briefs regarding what impact, if any, the supreme court's order of affirmance in Garmong v. Lyon Cty. Bd. of Cormn'rs , Docket No. 74644 (Order of Affirmance, May 3, 2019), had on the issue of standing in the present case. After considering the parties’ briefs, the district court dismissed Garmong's first amended complaint ("FAC"), with prejudice, for lack of standing.

Garmong appeals from the district court's order dismissing his FAC for lack of standing. First, Garmong argues he can maintain his 42 U.S C. § 1983 (" Section 1983") action against Judge Aberasturi because Judge Aberasturi is not entitled to judicial immunity. Second, Garmong avers he can maintain his Section 1983 action against the State of Nevada and the Third Judicial District Court because they are persons for purposes of a Section 1983 action and because the State of Nevada consented to be sued. We disagree and address his arguments in turn.³

First, Garmong argues Judge Aberasturi is not entitled to judicial immunity because he violated Garmong's civil rights in a case where the district court did not have subject matter jurisdiction. Further, he maintains Judge Aberasturi is not entitled to judicial immunity because that immunity cannot be asserted in an official capacity action under Section 1983. Lastly, Garmong avers he may bring a Section 1983 action against Judge Aberasturi in his individual capacity.

Whether a defendant is entitled to absolute immunity is a question of law that we review de novo. Harrison v. Roitman , 131 Nev. 915, 917, 362 P.3d 1138, 1139 (2015). Judicial immunity "provide[s] absolute immunity from subsequent damages liability for all persons—governmental or otherwise—who [are] integral parts of the judicial process." State v. Second Judicial Dist. Court ex rel. Cty. of Washoe , 118 Nev. 609, 615, 55 P.3d 420, 424 (2002) (quoting Briscoe v. LaHue , 460 U.S. 325, 335 (1983) ). Absolute immunity protects judicial officers from collateral attack and recognizes that appellate procedures are the appropriate method of correcting judicial error." Marvin v. Fitch, 126 Nev. 168, 174, 232 P.3d 425, 429 (2010).

"Absolute immunity is a broad grant of’ protection, shielding judges from civil damages and litigation, generally, in their individual capacities. Second Judicial Dist . Court , 118 Nev. at 615, 55 P.3d at 424 ; see also Drake v. Lerud , (Order Affirming in Part, Reversing in Part, and Remanding, November 14, 2013) (explaining a district court judge was entitled to judicial immunity in her individual capacity for performing judicial functions). Additionally, this court may apply absolute immunity even if a claimant accuses the district court "of acting maliciously and corruptly." Second Judicial Dist. Court, 118 Nev. at 615, 55 P.3d at 424.

Further, Section 1983 allows a plaintiff to bring civil rights claims against any person who, under color of any statute, deprives him of any rights, privileges, or immunities secured by the United States Constitution. 42 U.S.C. § 1983. However, neither States nor State "officials acting in their official capacities are persons" for purposes of Section 1983 actions, and thus, a plaintiff cannot bring a Section 1983 action against a State or State official. N. Nev. Ass'n of Injured Workers v. Nev. State Indus. Ins. Sys. , 107 Nev. 108, 114, 807 P.2d 728, 732 (1991) (emphasis added) (citing Will v. Mich. Dep't of State Police , 491 U.S. 58, 64-70 (1989) ).

Here, the district court properly dismissed Garmong's FAC because Judge Aberasturi is entitled to judicial immunity. Garmong's allegations against Judge Aberasturi were based on judicial acts performed in his capacity as a judicial officer.⁴ Thus, Judge Aberasturi is entitled to judicial immunity.

Further, the district court appropriately dismissed Garmong's FAC because Judge Aberasturi is immune in his official capacity as he is not a person under Section 1983. The allegations in Garmong's FAC relate to actions Judge Aberasturi took in his official capacity.⁵ Because Judge Aberasturi is a State official and acted in his official capacity, he is not a "person" for purposes of a Section 1983 action. Thus, Garmong may not maintain his Section 1983 action against Judge Aberasturi.

Second, Garmong contends his Section 1983 action does not fail against respondents because the State of Nevada and the Third Judicial District Court (the "Third District") chose to be treated as "natural persons." Garmong argues the State of Nevada statutorily waived its sovereign immunity and allowed itself to be treated as a "natural person" with the passage of NRS 41.031(1). Thus, he argues he can maintain his Section 1983 action.

Further, Garmong contends that the district court cannot dismiss his action based on the notion that the State of Nevada and the Third District are not "persons" for purposes of a Section 1983 action because this doctrine does not apply to suits seeking injunctive relief and suits brought under the Nevada Constitution.

States are not "persons" for purposes of a Section 1983 action, and thus, a plaintiff cannot bring a Section 1983 action against a State. N. Nev. Ass'n of Injured Workers , 107 Nev. at 114, 807 P.2d at 732 (citing Will , 491 U.S. at 64-70 ). A plaintiff seeking money damages under Section 1983 from the State or an entity of the State effectively fails to assert an actionable claim. Id.; see also Cuzze v. Univ. & Cmty. Coll. Sys. of Nev. , 123 Nev. 598, 605, 172 P.3d 131, 136 (2007) (holding a plaintiff cannot maintain a Section 1983 action against the State of Nevada or its entities). However, a plaintiff may bring a Section 1983 action against State officials for injunctive relief. N. Nev. Ass'n of Injured Workers , 107 Nev. at 115, 807 P.2d at 733 (citing Will, 491 U.S. at 71 n.10 ).

Here, the district court appropriately dismissed Garmong's Section 1983 action against the State of Nevada and the Third District because the State and its agencies are immune from Section 1983 actions with regard to money damages. The State of Nevada is not a person for purposes of a Section 1983 action; the Third District, being a State entity, is also not a person for purposes of a Section 1983 action. Thus, Garmong may not bring a Section 1983 action against them seeking money damages.

Additionally, NRS 41.031 does not negate the State of Nevada's immunity from a Section 1983 action. NRS 41.031 asserts that "[t]he State of Nevada hereby waives its immunity from liability and action and hereby consents to have its liability determined in accordance with the same rules of law as are applied to civil actions against natural persons and corporations. ..." NRS 41.031 (emphasis added). However, Nevada's waiver of liability under NRS 41.031 does not apply to Section 1983. See NRS 41.032 (stating that a person cannot bring an action under NRS 41.031 or against an officer, employee, agency, or political subdivision of the State...