Shafer v. City of Boulder

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Nevada
Citation896 F.Supp.2d 915
Docket NumberCase No. 2:10–cv–02228–MMD–GWF.
PartiesCurtis SHAFER, et al., Plaintiffs, v. CITY OF BOULDER, et al., Defendants.
Decision Date12 September 2012


Roger L. Harris, Law Office of Roger L. Harris, Boulder City, NV, for Plaintiffs.

Brian R. Hardy, Craig R. Anderson, Marquis & Aurbach, Jonathan B. Goldsmith, Goldsmith & Associates, Las Vegas, NV, for Defendants.


(Defendants' Motion for Summary Judgment—dkt. no. 28)

(Plaintiffs' Motion for Summary Judgment—dkt. no. 29)

MIRANDA M. DU, District Judge.


Before the Court are Defendants City of Boulder City (“COBC” or “City”), Chief Thomas Finn, Deputy Chief/Sergeant John Chase, Detective Mark Dubois, 1 and COBC Mayor Roger Tobler's Motion for Summary Judgment (dkt. no. 28), and Plaintiff Curtis Shafer's Partial Motion for Summary Judgment (dkt. no. 29).2


Except where stated, the following facts appear without dispute in the summary judgment record. Plaintiff Curtis Shafer and his family moved to 1733 Red Mountain Drive, Boulder City, Nevada on or about December 1, 2007. His next-door neighbor was Defendant Mark Fenyves. Shafer rented the property from his parents. Soon after Shafer moved in, Fenyves began calling the Boulder City Police Department (“BCPD”) on a regular basis claiming that Shafer, Shafer's wife, and visitors at Shafer's home were involved in the illegal sale and purchase of narcotics. Shafer admits that both he and his wife have used drugs in his residence, but denies that he was ever involved in the sale or distribution of drugs during the relevant time period. Instead, he states that the busy foot traffic at his home was a result of him leaving his home open for friends and family members to come and go as they please (dkt. no. 30–2 at 31). And while Fenyves believed that the nighttime antics at the Shafer home were suspicious, Shafer testified that this late night activity was merely Shafer and his friends staying up late playing video games. (Dkt. no. 30–2 at 24.)

Yet Fenyves believed Shafer was involved in the sale of illegal narcotics, and to that end he took several steps to report and monitor Shafer's activity. Fenyves purchased a home video surveillance system with four video cameras, a digital video recorder (“DVR”), and a split-screen television to monitor the cameras. At the same time, Fenyves told his neighbors about his suspicions and convinced several neighbors to install video cameras on their properties in order to videotape the Shafer residence. Shafer asserts that Fenyves and the cooperating neighbors agreed to maintain a list of license plates of all visitors coming to and going from Shafer's home. By early 2009, all of Shafer's immediate neighbors had installed video cameras on their properties. (Dkt. no. 30 at 11.) The record demonstrates that at least some of these cameras were aimed at Shafer's home. ( See id.) Shafer's neighbors repeatedly called the police to report on the allegedly unsavory activity occurring at the Shafer residence. Defendants claim that while Fenyves' calls were the most numerous, several of Shafer's other neighbors also called the Police Department with similar concerns.

After receiving repeated calls about the allegedly suspicious activity at 1733 Red Mountain Drive, BCPD decided to conduct an investigation regarding the matter. On February 20, 2009, while Chief Finn, the Boulder City Chief of Police, was away at a training conference, Fenyves and a small group of Shafer's neighbors met with Deputy Chief Chase to discuss their concerns. After the meeting, Deputy Chief Chase asked Detective Dubois to initiate a narcotics-related investigation of Shafer's home. (Dkt. no. 29–3 at 6.) As part of that investigation, Chase directed Dubois to provide Fenyves with four infrared, long-range, weatherproof, silent video surveillance cameras. The Department of Homeland Security (“DHS”) had provided BCPD with the cameras as part of a $50,000 grant to help the BCPD and Boulder City combat terrorism and criminal activity (the cameras are hereinafter referred to as the “DHS cameras”). ( See dkt. nos. 29–1 at 1 and 30–5 at 7.) At his deposition, Deputy Chief Chase stated that BCPD provided Fenyves with the DHS cameras to “monitor the ingress and egress into the [Shafer] property to see whether or not” criminal activity was occurring at the residence. (Dkt. no. 30–3 at 22.)

The DHS cameras were installed and operated day and night for fifty-six days. At least two of the cameras were pointed at Shafer's property—one at his bathroom window and one at his backyard. According to the COBC Defendants, Detective Dubois did not install the cameras, but instead instructed Fenyves on the placement of the cameras. Dubois testified that he told Fenyves it would “be okay” if the cameras were pointed in the direction of Shafer's backyard, but not to point the cameras at any of Shafer's windows. (Dkt. no. 30–5 at 9.) Fenyves, however, testified that none of the Officer Defendants provided him with instructions about installation or filming. (Dkt. no. 29–6 at 8–10.)

Although Chief Finn was out of town when Deputy Chief Chase authorized the investigation and loaned the cameras to Fenyves, Finn and Chase spoke about the investigation upon Finn's return. Chase informed Finn that BCPD had loaned Fenyves the DHS cameras as part of an investigation into the allegedly suspicious activity at the Shafer residence.

Shafer claims that he complained to the police at least nineteen times about his neighbors' surveillance of his home. There is no evidence that the police responded to these calls. But on April 4, 2009, Officer Jeanette Ford was dispatched to Fenyves' home to resolve a dispute that arose between Shafer and Fenyves. Fenyves had positioned one of the DHS cameras on a pole so that it could directly overlook Shafer's backyard and a portion of Shafer's home. Angered by this, Shafer walked onto Fenyves' property and tried to knock the camera down. At approximately 11:30 p.m., Officer Ford reported to the scene. The incident report listed both Fenyves and Shafer as reporting parties and was originally reported as an assault and battery. (Dkt. no. 34 at 10.) However, in her report Officer Ford noted that there were no signs of assault and battery but merely a trespass. Officer Ford's report states that she spoke with both parties about the incident. Officer Ford noted that “Mark [Fenyves] was very vague about how he obtained the camera and eventually said he was provided with it by then Deputy Chief J. Chase ... with the intent being to film Curtis' [Shafer] backyard and the activity going on at his home as there were concerns of illegal narcotic activity possibly occurring.” (Dkt. no. 34 at 10.) Officer Ford informed Fenyves that he had not positioned the camera on the pole properly and that he must take it down. ( Id.;see also dkt. no. 30 at 25.) Fenyves complied. Approximately two weeks later, after speaking with the BCPD about the incident, Fenyves returned all four cameras to the BCPD.

Discord between the two neighbors persisted. The parties participated in neighborhood mediation in April 2009. Although at first the results appeared promising—with Fenyves and Shafer hugging in reconciliation—the peace did not last long. Both men received temporary restraining orders against one another. (Dkt. no. 30–2 at 27.) Several media stories covered the allegedly illicit activity at the Shafer residence. ( Id. at 29.) The animosity led Mayor Roger Tobler to call a special town meeting on January 19, 2010. Shafer asserts that at the meeting, Mayor Tobler “opined that he had knowledge of the neighborhood and the problem and that Plaintiff was the cause.” In fact, Tobler stated, “I wouldn't want to live next to that [Shafer] either.”

Shafer did not discover that BCPD had provided Fenyves with the DHS cameras until September 16, 2010. ( See dkt. no. 28–5 at 37.) A criminal complaint had been issued against Shafer for trespassing on Fenyves' property on April 4, 2009, the night of the incident involving Officer Ford. During the municipal court trial on September 16, 2010, Deputy Chief Chase and Detective Dubois testified that the BCPD had provided Fenyves with the DHS cameras as part of an initial narcotics investigation.3 (Dkt. no. 28–5 at 20, 37.)

On December 22, 2010, Shafer filed suit against the City, BCPD, Chief of Police Thomas Finn, Deputy Chief of Police John Chase, and Senior Detective Mark Dubois under 42 U.S.C. § 1983 for violation of his Fourth Amendment right to be secure against unreasonable government searches. He brings suit against the officers in their individual and official capacities. Shafer also brings a Monell claim against the City and BCPD, alleging that they perpetuated a policy, practice, or custom of unconstitutional video surveillance of Shafer's home.

Shafer also brings several state law claims against the COBC Defendants, including: (1) violation of Nevada Constitution Article I, § 18; (2) invasion of privacy; (3) intentional infliction of emotional distress; (4) negligent infliction of emotional distress; (5) civil conspiracy; (6) negligence; and (7) slander against Mayor Tobler.4

The COBC Defendants filed a Motion for Summary Judgment on all claims except for Shafer's Nevada Constitution claim.5 (Dkt. no. 28.) Shafer filed a Motion for Partial Summary Judgment on all claims except for intentional infliction of emotional distress, negligent infliction of emotional distress, and his claims relating to Defendants Tobler and Fenyves. (Dkt. no. 29.)


The purpose of summary judgment is to avoid unnecessary trials when there is no dispute as to the facts before the court. Nw. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1471 (9th Cir.1994). Summary judgment is appropriate when the pleadings, the discovery and disclosure materials on file, and any affidavits “show there is no genuine issue as to any material...

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