Opinion
3:12-cv-00283-RCJ-VPC
10-23-2014
RICHARD PIKE, Plaintiff, v. J. BRAD HESTER et al., Defendants.
ORDER
This case arises out of alleged defamation, illegal searches and seizures, and general harassment of an Elko County employee by several sheriff's deputies because of a private dispute between the employee and a sheriff's deputy.
I. FACTS AND PROCEDURAL HISTORY
A. The Parties
Plaintiff Richard Pike was employed by Defendant Elko County (the "County") as the Director of the City of Jackpot Recreation Center (the "Center"). (Compl. ¶ 10, May 25, 2012, ECF No. 1). Plaintiff's supervisor was the Director of Elko County Public Works, Mr. Lynn Forsberg, who is not a party to this action. (See id. ¶ 19). Defendants J. Brad Hester and Sean Munson are employed by the County as deputy sheriffs with Defendant Elko County Sheriff's Office ("ECSO"). (Id. ¶¶ 11-12). Defendants Rick Keema and Jim Pitts are also employed by the County and ECSO as the Under-Sheriff and Sheriff, respectively, and they are alleged to be "officers" of the County as that term is used in Section 32 of the Nevada Constitution and final policymakers for the purposes of municipal liability claims under 42 U.S.C. § 1983. (See id. ¶¶ 13-14). Pike and Hester have a history of animosity arising out of Pike's previous supervision over Hester's minor child in Pike's capacity as assistant coach of a high school football team during the Fall of 2008. (See id. ¶ 18).
B. The First Unlawful Search
Plaintiff has had an office at the Center since about September 2007, where he keeps personal affects such as photographs. (Id. ¶¶ 21-23). In or about August 2011, Deputy Hester (who was at that time a sergeant), accompanied by Deputy Munson and non-party Deputy Mike Moore, unlocked one of the outer doors of the Center and searched the Center without a warrant, based upon the false pretense that Plaintiff was selling the illegal drug known as "ecstasy" to school children. (See id. ¶¶ 27-28, 34). Once inside the Center, Hester ordered Moore to conduct a dog sniff throughout the building. (Id. ¶ 29). During the dog sniff, Hester unlocked the door to Plaintiff's office and searched it, including Plaintiff's desk, without a warrant. (Id. ¶¶ 30, 34). During the search, Hester seized an envelope from Plaintiff's desk containing $500 that nonparty James Ward had left with Plaintiff to be given to Plaintiff's God-son, Cody Ward, for travel expenses. (Id.). Hester then ordered Moore to perform a dog sniff of Plaintiff's office, and the dog did not react to anything in Plaintiff's office. (Id. ¶ 31). Hester then asked Moore if he were "sure" there was nothing in the office and asked him to perform another sniff "right here," pointing to Plaintiff's filing cabinet. (Id.). Moore complied, and again the dog did not react. (Id.). Plaintiff did not have any illegal drugs, but he suspects that Hester planted illegal drugs, i.e., ecstasy, during the search, and that the dog simply failed to react to them. (See id. ¶ 32).
In or about October 2011, ECSO informed Plaintiff of the August 2011 search. (Id. ¶ 38). Plaintiff presented a grievance to non-party ECSO Lieutenant Marvin Morton about the search, and Morton promised to "look into it." (Id. ¶ 39). Plaintiff alleges that Under-Sheriff Keema's investigation into the illegal search on behalf of ECSO was intentionally deficient. (See id. ¶ 40). However, Sheriff Pitts and Under-Sheriff Keema ultimately "sustained" the investigation, meaning they found that an illegal search had occurred; still, as is their usual custom and practice, they refused to properly punish Hester, but rather downplayed his illegal conduct in order to shield him from civil liability and criminal prosecution, giving him only a written reprimand and three days unpaid leave. (Id. ¶ 41).
C. The Second Unlawful Search
On or about October 25, 2011, Munson, accompanied by non-party former Deputy Steve Church, while in uniform, and without a warrant, picked the lock to an exterior door of the Center in order to train Church how to break into the Center. (Id. ¶ 43). Munson and Church got trapped in the Center when a door locked behind them that they could not reopen, so they called Moore to free them. (Id. ¶ 44). Munson had broken into the Center multiple times in the past in order to teach deputies how to break into buildings. (Id. ¶ 45). Plaintiff consented to neither the October 25, 2011 search nor the August 2011 search, and Forsberg did not authorize either of them. (Id. ¶¶ 36-37, 46-47).
D. Hester's Defamation of Plaintiff
Hester ordered the illegal August 2011 search of the Center based upon the false pretense that Plaintiff was selling the drug "ecstasy" to schoolchildren, which claim Hester made to Forsberg, Munson, and Moore. (Id. ¶ 48-50). On September 22, 2011, Hester went to the office of the Dean of Students and Athletic Director of Jackpot Combined School Kim Smith, to talk about Plaintiff and Jackpot Combined School Football Coach Jorge Perez. (Id. ¶ 51). At the meeting, Hester maliciously told Smith that Plaintiff was a "pot head," "one of Jackpot's biggest druggies," and "just threw his bong and pipe away a couple of weeks ago." (Id. ¶ 52). Hester made these allegations in order to have Plaintiff removed as Head Coach of the Jackpot Football Team so that Hester could secure that position for himself. (Id. ¶ 53). The official letter in which Smith memorialized Hester's allegations has since been widely disseminated, adversely affecting Plaintiffs personal and professional reputation. (Id. ¶¶ 54-55). In or about October 2011, Plaintiff and James Ward met with Lieutenant Morton to present a grievance concerning Hester's defamatory statements, and Morton promised to "look into it." (Id. ¶ 61). Plaintiff believes that Morton conducted an internal affairs investigation, but Pitts, Keema, ECSO, and the County took no action against Hester as a result. (Id. ¶¶ 62-63).
Plaintiff may have meant to allege that he was the Assistant Coach at this time. (See id. ¶ 18 (noting that in the Fall of 2008, Plaintiff was the Assistant Coach); id. ¶ 51 (noting that Perez was the Coach at the time of the September 22, 2011 meeting)).
E. Hester's Harassment and Plaintiff's Protective Orders Against Hester
After ECSO began the internal affairs investigation of Hester, Hester began driving his ECSO vehicle to Plaintiff's place of residence and work up to seven times a day over the span of several months in order to stop and stare at Plaintiff in a hostile and threatening manner. (Id. ¶ 64). Hester did this in order to make Plaintiff fear for his life and safety, as well as the lives and safety of those around him. (Id. ¶ 65).
On November 15, 2011, Plaintiff filed an application for an Order of Protection Against Stalking, Aggravated Stalking, or Harassments against Hester with the Elko County Justice Court. (Id. ¶ 68). Judge Al Kacin of that court entered a Temporary Order for Protection (the "First TOP") that same day. (Id.). At the December 12, 2011 hearing on the application, at least nine witnesses testified, and Judge Kacin later entered an Extended Order of Protection (the "First EOP"), finding by a preponderance of the evidence that Hester had stalked Plaintiff in violation of Nevada Revised Statutes ("NRS") section 200.575(1). (Id. ¶ 69). Judge Kacin specifically found: (1) Plaintiff felt frightened and intimidated by Hester's conduct, including the illegal search of his office and the "stop and stare" incidents; (2) Hester's conduct would have intimidated a reasonable person; and (3) Hester did not have lawful authority to search Plaintiff's office and that the search was colored by Hester's animosity towards Plaintiff. (Id.). On March 2, 2012, Plaintiff filed a second application for an Order of Protection Against Stalking, Aggravated Stalking, or Harassments against Hester with the Elko County Justice Court. (Id. ¶ 70). Judge Barbara Nethery of that court entered a Temporary Order for Protection (the "Second TOP") that same day. (Id.).
F. The Present Case
Plaintiff sued the County, ECSO, and Hester, Munson, Keema, and Pitts in their official and individual capacities in this Court on ten causes of action: (1) Fourth Amendment violations pursuant to 42 U.S.C. § 1983 (all Defendants); (2) Defamation (Hester); (3) False Imprisonment (Hester); (4) Intentional Infliction of Emotional Distress ("IIED") (Hester); (5) Conversion (Hester); (6) Invasion of Privacy (Hester and Munson); (7) Negligent Hiring (Pitts, ECSO, and the County); (8) Negligent Retention (Pitts, ECSO, and the County); (9) Negligent Supervision (Pitts, ECSO, and the County); and (10) Respondeat Superior (ECSO and the County). The County and Hester jointly moved to dismiss, and the Court denied the motion. Plaintiff moved for offensive summary judgment as to certain issues adjudicated in the First EOP and Judge Nethery's March 28, 2012 Extended Order for Protection (the "Second EOP"). The Court granted the motion in part on March 5, 2013, ruling that certain findings by those judges could not be relitigated. Defendants moved to preclude the admission of expert testimony by James Andre Boles. The Court granted that motion in part and denied it in part. Plaintiff filed two motions for offensive summary judgment and a motion for leave to amend the Complaint. On April 26, 2013, the Court denied summary judgment to Plaintiff on the IIED claim, granted summary judgment on the qualified immunity issue, and therefore also on his Fourth Amendment claim, and granted Plaintiff leave to file a supplemental complaint. Defendants have filed an interlocutory appeal on the denial of qualified immunity. Plaintiff filed a Supplemental Complaint ("SC").
The SC was properly entitled as a "Supplemental Complaint" but appeared as an "Amended Complaint" in the electronic docket, perhaps because of administrative limitations in the CM/ECF system or Plaintiff's error in entering the motion electronically.
On July 9, 2013, the Court ruled on fifteen motions. The Court granted summary judgment to the County and ESCO as to the IIED claim, but noted that Hester would not be entitled to summary judgment against such claims if he had so moved. The Court denied summary judgment against the defamation and IIED claims under Nevada's anti-SLAPP statute. The Court denied summary judgment against the Fourth Amendment and substantive due process claims. The Court granted summary judgment against the false imprisonment claim but denied it against the claim for intrusion upon seclusion. The Court further ruled that as to the defamation claim, Plaintiff would have to prove negligence and falsity by a preponderance of the evidence to recover any provable special damages and would have to prove malice by clear and convincing evidence in order to recover presumed or punitive damages. The Court granted summary judgment to Defendants on the negligent hiring claim but denied summary judgment on the negligent retention and negligent supervision claims against Pitts and ECSO. The Court granted summary judgment to the County on all of those claims, however, as well as against any Monell claims. The Court refused to stay the trial because it ruled that the right to interlocutory appeal of the qualified immunity issue had been waived. A trial has not yet been set, however. Finally, the Court struck the SC upon Defendants' motions, for the following reasons:
Defendants note that the SC is materially different from the proposed supplemental complaint Plaintiff presented to the Court and requested leave to file. Compare Order 10:13-14, Apr. 26, ECF No. 66 ("Plaintiff may file the supplemental complaint in the form it exists as attached to the present motion [(ECF No. 58-1, at 8) (listing claims against the County and Robert Stokes for First Amendment Retaliation, Race/National Origin Discrimination, and Family and Medical Leave Act Interference)]." (emphasis added)), with Suppl. Compl. (listing those same claims against the County, Stokes, and Hester). The Court grants the motion and dismisses the SC in its entirety, without leave to amend, for failure to comply with the Court's order under Rule 41. When a party requires leave and receives it, it receives leave(Order 10:1-17, ECF No. 128). Plaintiff recently asked the Court to reconsider striking the SC but has since moved to withdraw the motion given the stay pending appeal.
only to do what the Court permits. The Court was clear—although counsel has an ethical duty to follow the rules even in the absence of a specific admonition—that Plaintiff only had leave to file the SC in the form in which he had presented it to the Court. Plaintiff added Hester as a Defendant without leave of the Court. The Court will not tolerate the parties' attempting to take more than is given. This practice—attempting to "sneak" things past the Court—is dishonest and frankly childish, and it reflects poorly on the legal profession. If counsel wished to supplement the Complaint in additional ways for which he required additional leave, it would have been a simple matter for him to have requested it.
II. DISCUSSION
The Court grants the motion to withdraw but indicates it would be inclined to deny the motion to reconsider. Plaintiff argues that his previous attorney (Mr. Dickerson, who is currently suspended for one year due to multiple unrelated malfeasances) inadvertently filed the wrong version of the SC. The motion is untimely. Even assuming the overbroad SC was in fact filed inadvertently—a claim the Court discredits, especially coming from Mr. Dickerson—the motion to reconsider based on inadvertence is simply untimely. See Fed. R. Civ. P. 60(b)(1), (c)(1).
The first, overbroad version of the SC was dated April 29, 2013, the same date it was filed, and it was filed in pdf format. The "corrected" version of the SC filed on May 5, 2013 was dated April 2, 2013. That was the version Plaintiff originally requested leave to file via his April 2, 2013 motion for leave. However, the "corrected" version filed on May 5, 2013 was for some reason not simply a clean pdf copy of the original proposed SC but a copy of the scanned copy of the SC that Defendants had attached to their motion to strike. In any case, it is fairly clear that the first, overbroad version of the SC Plaintiff filed was not some older version accidentally selected from the cloud, as Plaintiff argues now, but that it was in fact a much newer version created right as it was filed, and that Mr. Dickerson's precise intention was to "ignore the confines of the Court's leave to amend."
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CONCLUSION
IT IS HEREBY ORDERED that the Motion to Withdraw (ECF No. 138) is GRANTED.
IT IS FURTHER ORDERED that the Clerk shall TERMINATE the Motion to Reconsider (ECF No. 137).
IT IS SO ORDERED. Dated this 23rd day of October, 2014.
/s/_________
ROBERT C. JONES
United States District Judge