Mustafanos v. Nevada
| Decision Date | 27 September 2018 |
| Docket Number | Case No. 3:16-cv-00254-MMD-WGC |
| Parties | YOSEF L. MUSTAFANOS, et al., Plaintiffs, v. THE STATE OF NEVADA, et al., Defendants. |
| Court | U.S. District Court — District of Nevada |
This is a civil rights action brought by a disabled Army veteran (Plaintiff Shirley Jean Clifton) and her guardian (Plaintiff Yosef L. Mustafanos). Before the Court are two motions for summary judgment to which Plaintiff has not responded: Defendant Laura Depaoli's motion for summary judgment ("Depaoli's Motion") (ECF No. 120) and Defendants Lyon County and Gregory Kantz's motion for summary judgment ("County Defendants' Motion") (ECF No. 123).
Also before the Court is Plaintiffs' motion for leave to file an amended complaint (ECF No. 131) and motion to add parties (ECF No. 132) ("Plaintiff's Motions").1
For the following reasons, the Court grants Depaoli's Motion and the County Defendants' Motion and denies Plaintiffs' Motions.2
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The Court incorporates herein the facts as described in the Court's previous order. (ECF No. 95.) The dispute in this case revolves around the marriage and separation of Mustafanos and non-moving Defendant Deborah June Strode as well as the guardianship of Mustafanos's sister, Plaintiff Clifton, though the Complaint is lengthy, repetitive, and confusing. (See id. at 1, 3; ECF No. 1.)
Depaoli moves for summary judgment on all of Plaintiffs' claims. The Court will consider the claims against Depaoli in three groups: claims arising under 42 U.S.C. §§ 1983 and 1985 (Counts 1, 7, 8, and 9), claims arising under state law (Counts 3-6 and 17-18), and claims that do not appear to be directed at Depaoli (Counts 2, 10-16, and 20-22).
Counts 1, 7, 8, and 9 arise under 42 U.S.C. §§ 1983 and 1985 (see ECF No. 1 at 36, 46-48) and cannot succeed against Depaoli because she is not a state actor. See Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003) (); Sykes v. Cal. Dep't of Motor Vehicles, 497 F.2d 197, 200 (9th Cir. 1974) (). Accordingly, the Court will grant summary judgment in favor of Depaoli on Counts 1, 7, 8, and 9.
Count 3 is a claim for trespass. (ECF No. 1 at 40-42.) "Under Nevada law, '[t]o sustain a trespass action, a property right must be shown to have been invaded.'" Silver State Broad., LLC v. Beasley FM Acquisition Corp., No. 2:11-CV-01789-MMD, 2012 WL 4049481, at *6 (D. Nev. Sept. 12, 2012) (quoting Lied v. Clark County, 579 P.2d 171, 173-74 (Nev. 1978)). Depaoli argues that she did not invade a property right because her only visits to the property were at the invitation of Defendant Strode, an owner of the
///property. (ECF No. 120 at 11.) Plaintiffs present no evidence to the contrary. Accordingly, the Court will grant summary judgment in favor of Depaoli on Count 3.
Count 4 is a claim for conversion. (ECF No. 1 at 42-43.) "Conversion is 'a distinct act of dominion wrongfully exerted over another's personal property in denial of, or inconsistent with his title or rights therein or in derogation, exclusion, or defiance of such title or rights.'" Evans v. Dean Witter Reynolds, Inc., 5 P.3d 1043, 1048 (2000). "Further, conversion is an act of general intent, which does not require wrongful intent and is not excused by care, good faith, or lack of knowledge." Id. (citation omitted). "Whether a conversion has occurred is generally a question of fact for the jury." Id. (citation omitted). Depaoli argues that the property she helped to move did not belong to Plaintiffs. (See ECF No. 120 at 12.) Plaintiffs have offered no evidence to the contrary. Accordingly, the Court will grant summary judgment in favor of Depaoli on Count 4.
Count 5 is a claim for conspiracy. (ECF No. 1 at 43-45.) "An actionable civil conspiracy consists of a combination of two or more persons who, by some concerted action, intend to accomplish an unlawful objective for the purpose of harming another, and damage results from the act or acts." Moonin v. Nev. ex rel. Dep't of Pub. Safety Highway Patrol, 960 F. Supp. 2d 1130, 1142-43 (D. Nev. 2013) (quoting Consol. Generator-Nevada, Inc. v. Cummins Engine Co., Inc., 971 P.2d 1251, 1256 (Nev. 1998)). Depaoli argues that there is no evidence "that there was anything nefarious or ill-intentioned with regard to the plan to assist Strode in obtaining her personal property." (ECF No. 120 at 13.) Plaintiff has offered no evidence in this regard. Accordingly, the Court will grant summary judgment in favor of Depaoli on Count 5.
Count 6 is a claim for intentional infliction of emotional distress ("IIED"). (ECF No. 1 at 45-46.) "To state a claim for [IIED] the plaintiff must establish: '(1) extreme and outrageous conduct with either the intention of, or reckless disregard for, causing emotional distress, (2) the plaintiff's having suffered severe or extreme emotional distress, and (3) actual or proximate causation.'" Welder v. Univ. of S. Nev., 833 F. Supp. 2d 1240, 1245 (D. Nev. 2011) (quoting Dillard Dep't Stores, Inc. v. Beckwith, 989 P.2d 882, 886(Nev. 1999)). Depaoli argues that Plaintiffs have produced no evidence to show that Depaoli acted with intent to cause harm, that her conduct was extreme or outrageous, or that Plaintiffs have suffered extreme emotional distress. (ECF No. 120 at 14.) Plaintiffs have offered no evidence in this regard. Accordingly, the Court will grant summary judgment in favor of Depaoli on Count 6.
Counts 17 and 18 are defamation claims. (See ECF No. 1 at 53-55.) "An action for defamation requires the plaintiff to prove four elements: '(1) a false and defamatory statement; (2) an unprivileged publication to a third person; (3) fault, amounting to at least negligence; and (4) actual or presumed damages.'" Clark Cty. Sch. Dist. v. Virtual Educ. Software, Inc., 213 P.3d 496, 503 (Nev. 2009) (quoting Pope v. Motel 6, 114 P.3d 277, 282 (Nev. 2005)). Depaoli argues that she did not make a false and defamatory statement. (ECF No. 120 at 16.) Plaintiffs have offered no evidence to the contrary. Accordingly, the Court will grant summary judgment in favor of Depaoli on Counts 17 and 18.
The remaining claims do not seem to be directed toward Depaoli: Counts 2, 10-16, and 20-22. Nevertheless, Depaoli seeks summary judgment, citing to the lack of any allegations against her with respect to these claims. Plaintiffs have not offered any argument to the contrary. Accordingly, the Court will grant summary judgment in favor of Depaoli on these claims as well.
The County Defendants move for summary judgment on all of Plaintiffs' claims. The Court will consider each claim independently, except for Counts 10-18, 20, and 22, which the Court will consider in two groups: state law tort claims to which discretionary immunity applies (Counts 11-12 and 14-18) and claims that do not seem to be directed towards the County Defendants (Counts 10, 13, 20, and 22).
In Count 1, Plaintiffs seem to seek liability directly against Lyon County based on the alleged existence of an unlawful custom or policy that led to a violation of their FourthAmendment rights as well as Lyon County's alleged failure to adequately train its officers on Fourth Amendment procedures. (See ECF No. 1 at 36-38.)
"A government entity may not be held liable under 42 U.S.C. § 1983, unless a policy, practice, or custom of the entity can be shown to be a moving force behind a violation of constitutional rights." Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (citing Monell v. Dep't of Soc. Servs. of the City of New York, 436 U.S. 658, 694 (1978)). To establish Monell liability, a plaintiff must prove "(1) that [the plaintiff] possessed a constitutional right of which [s]he was deprived; (2) that the municipality had a policy; (3) that this policy amounts to deliberate indifference to the plaintiff's constitutional right; and, (4) that the policy is the moving force behind the constitutional violation." Id. (alteration in original) (quoting Plumeau v. Sch. Dist. No. 40 Cty. of Yamhill, 130 F.3d 432, 438 (9th Cir.1997)). Failure to train may amount to a policy of "deliberate indifference," if the need to train was obvious and the failure to do so made a violation of constitutional rights likely. City of Canton v. Harris, 489 U.S. 378, 390 (1989).
Under either theory, Plaintiffs must establish a deprivation of constitutional rights. The County Defendants argue that Plaintiffs have no evidence to show that Kantz violated their Fourth Amendment rights because Kantz neither searched Plaintiffs' residence nor seized anything during his short time at the property in question. (ECF No. 123 at 11.) In addition, the property at issue—taken by other individuals—did not belong to Plaintiffs. (Id.) Plaintiffs have failed to produce evidence to the contrary. Accordingly, the Court will grant summary judgment in favor of the County Defendants on Count 1.
In Count 2, Plaintiffs allege that Kantz violated certain provisions of the Nevada Constitution: Article 1, Section 8 (substantive due process) and Article 1, Section 18 (). (ECF No. 1 at 38-40.) Defendants argue that Plaintiffs cannot succeed on this claim because they have produced no evidence that Kantz conducted a search or seized any items. (ECF No. 123 at 13.) Plaintiffs have not
///produced any such evidence. Accordingly, the Court will grant summary judgment in favor of the County Defendants on Count 2.
Count 3 is a claim for trespass. (ECF No. 1 at 40-42.) The County Defendants argue that Kantz was on the property lawfully at the request of Defendant Strode, one of the owners of the...
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