Boar, Inc et al v. County of Nye et al

Filing 125

ORDER Granting 53 Defendants County of Nye, Jack Lohman, Richard Johnson, and joining Defendants CAA's Motion for Summary Judgment on counts one through three and counts five through seven of Plaintiffs' Second Amended Complaint. Count four is dismissed for lack of subject matter jurisdiction. Signed by Judge Philip M. Pro on 11/30/10. (Copies have been distributed pursuant to the NEF - EDS)

Boar, Inc et al v. County of Nye et al

Doc. 125

1 2 3 UNITED STATES DISTRICT COURT 4 D IS T R IC T OF NEVADA 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 P re se n tly before the Court is Defendants' Motion for Summary Judgment (Doc. # 5 3 ) filed on behalf of Defendants County of Nye, Jack Lohman, and Richard Johnson (" N ye County Defendants") on March 3, 2010. Defendants Charles Abbott Associates, In c ., Jimmy Floyd, and Brent Steed ("CAA Defendants") filed a Joinder (Doc. #100) on O c to b e r 14, 2010. Plaintiffs filed an Opposition (Doc. #103) on October 22, 2010. Defendants filed Replies (Doc. #111, #112) on November 5, 2010. The Court held a h e a rin g on this motion on November 29, 2010. (Mins. of Proceedings (Doc. #124).) T h e parties are familiar with the facts, and the Court will not repeat them here e x c e p t where necessary. Generally, this is a civil rights action in which Plaintiffs, who are d e v e lo p e rs of property in Nye County, claim Defendants singled them out for disfavored tre a tm e n t and imposed permitting and compliance requirements on them that they do not re q u ire of other, favored builders and developers. Plaintiffs also contend that when they *** ) B O A R , INC., KARL SNOWDON, ) M A V E R IC K SNOWDON, and SUZANNE ) SN O W D O N , ) ) P la in tif f s , ) ) v. ) ) C O U N T Y OF NYE, JACK LOHMAN, ) R IC H A R D JOHNSON, BRENT STEED, ) C H A R L E S ABBOTT ASSOCIATES, ) IN C ., and JIMMY FLOYD, ) ) Defendants. ) )

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s o u g h t to review and copy County records to determine whether they were being treated d if f e re n tly, Defendants refused to permit them to view documents and/or charged exorbitant f e e s to do so. Plaintiffs therefore bring a claim against Nye County for civil rights v io la tio n s based on an alleged unwritten policy of favoring certain connected individuals in th e County in violation of Plaintiffs' equal protection and due process rights, and which c o n s titu te d a taking. Plaintiffs also bring claims under 42 U.S.C. § 1983 for equal p ro te c tio n , due process, and takings violations. Plaintiffs further assert state law claims for c iv il conspiracy, negligent hiring, training, and supervision, and negligence. A. Count One - Monell Claim Against the County C o u n t one of Plaintiffs' Second Amended Complaint1 ("SAC") alleges the C o u n ty has an unwritten policy of discriminating against property owners who are not in p o litic a l favor or who question county government actions. (Second Am. Compl. (Doc. # 7 4 ) at 5.) The SAC alleges this policy has led to the violation of Plaintiffs' equal p ro te c tio n and due process rights, and resulted in a taking. (Id. at 5-6.) A plaintiff suing a municipality or its agency must establish both a constitutional d e p riv a tio n and the existence of a municipal custom or policy that caused the deprivation. Munger v. City of Glasgow Police Dep't, 227 F.3d 1082, 1087 (9th Cir. 2000) (citing M o n e ll v. Dep't of Soc. Servs., 436 U.S. 658, 690-91 (1978)); Wallis v. Spencer, 202 F.3d 1 1 2 6 , 1136 (9th Cir. 2000). As discussed below, Plaintiffs do not present evidence raising a g e n u in e issue of material fact that any constitutional violation occurred. Additionally, P la in tif f s present no evidence raising a genuine issue of material fact that Nye County has a n unwritten policy of treating certain developers more favorably than others. Plaintiffs

Plaintiffs filed the SAC after the Nye County Defendants filed their motion for summary judgment. The SAC adds a claim against the Nye County Defendants under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), and adds the CAA Defendants. Because the motion was filed before the SAC, it does not address the RICO count as to any Defendant. 2

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p re s e n t no evidence any such unwritten policy exists. Although Plaintiffs state "supervisory a n d policy making officials" knew of this policy, Plaintiffs do not identify who these people a re , how they knew it, or when they knew it. Plaintiffs present no evidence that Defendants J a c k Lohman or Richard Johnson were final decision makers whose conduct would c o n s titu te County policy, and the fact that any Planning Department decision was subject to a p p e a l suggests they were not. The Court will grant summary judgment in favor of D e f e n d a n t Nye County on count one. B. Count Two - Equal Protection A n equal protection claim may be based on a "class of one" theory. To establish a class of one equal protection claim, the plaintiffs must show the defendants intentionally tre a te d them differently from others similarly situated and "there is no rational basis for the d if f e re n c e in treatment." Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). While Plaintiffs have identified properties which did not have the same re q u ire m e n ts regarding parking, landscaping, impact fees, or septic systems, Plaintiffs have n o t presented evidence raising an issue of fact that these properties were similarly situated. Plaintiffs rest on the proposition that any commercial property developed in Nye County is s im ila rly situated. But property is zoned differently, built by different types of entities, and d e v e lo p e d at different times under different regulations. For example, some of the p ro p e rtie s Plaintiffs identify were in development prior to the impact fees being im p le m e n te d , and thus there was no requirement for those developers to pay impact fees. (Defs.' Reply, Aff. of Steve Osborne (Doc. #113).) Plaintiffs, on the other hand, were s u b je c t to the impact fee requirement due to the timing of their project. Others had g ra n d f a th e re d permits for their septic systems and were able to produce the original permit, a n d thus were not subject to the new OSDS regulations implemented by the State of N e v a d a . (Id.) Plaintiffs could not present a permit for their ISDS septic system that would a llo w their ISDS septic system to be grandfathered under the applicable regulations. In 3

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s h o rt, while Plaintiffs have been able to identify other property in Nye County that was not s u b je c t to the same requirements as Plaintiffs, Plaintiffs have presented no evidence raising a genuine issue of material fact that Defendants treated similarly situated properties d if f e re n tly. The Court therefore will grant Defendants' motion as to count two. C . Count Three - Due Process P la in tif f s do not make a procedural due process claim, and Plaintiffs do not id e n tif y any inadequate procedures or a failure to adhere to establish procedures. Plaintiffs w e re advised of their appeal rights and never exercised them. A s to substantive due process, to establish such a claim, Plaintiffs "must prove th a t the County's actions were clearly arbitrary and unreasonable, having no substantial re la tio n to the public health, safety, morals, or general welfare." Dodd v. Hood River C o u n ty, 59 F.3d 852, 864 (9th Cir. 1995) (quotation omitted). "A substantive due process c la im requires proof that the interference with property rights was irrational and arbitrary." Id. The Court should not interfere with local land use decisions unless the County "could h a v e no legitimate reason for its decision." Id. "There is no denial of substantive due p ro c e s s if the question as to whether the government acted arbitrarily or capriciously is at le a s t debatable." Id. (quotation omitted). P la in tif f s ' substantive due process claim rests on the argument that Defendants tre a te d Plaintiffs differently from similarly situated individuals, but as just discussed, P la in tif f s present no evidence raising a genuine issue of fact on that issue. Plaintiffs also c o n te n d Defendants arbitrarily and capriciously retaliated against them, but cite to no e v id e n c e in support of that claim. Plaintiffs were required to adhere to applicable re g u la tio n s regarding landscaping, parking, fire prevention, septic systems, and impact fees. The County has legitimate reasons to enforce these requirements. The Court will grant D e f e n d a n ts' motion for summary judgment on this claim. /// 4

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D . Count Four - Takings A Fifth Amendment takings claim is not ripe for review until "the government e n tity charged with implementing the regulations has reached a final decision regarding the a p p lic a tio n of the [challenged] regulations to the property at issue," and the plaintiff has s o u g h t compensation through the state-provided procedures. Adam Bros. Farming, Inc. v. C o u n ty of Santa Barbara, 604 F.3d 1142, 1146-47 (9th Cir. 2010). If a takings claim is not rip e under this test, the Court must dismiss for lack of subject matter jurisdiction. Jama C o n s tr. v. City of Los Angeles, 938 F.2d 1045, 1048 (9th Cir. 1991). Plaintiffs cannot meet either prong of the ripeness test. The Planning D e p a rtm e n t's decisions were not necessarily final, as Plaintiffs were advised of their appeal rig h ts and never exercised them. Further, Plaintiffs have not sought compensation for any a lle g e d takings through any procedures Nevada law provides. Plaintiffs argued at the h e a rin g that appealing the Planning Department decisions would have been futile because C o u n ty employees told them not to bother appealing. However, Plaintiffs have not p re s e n te d evidence that seeking just compensation would have been futile, even if a p p e a lin g the regulatory decision would have been futile. The Fifth Amendment does not p ro h ib it takings, it prohibits takings without just compensation. Plaintiffs have not sought c o m p e n s a tio n , the claim is not ripe, and the Court must dismissed the claim for lack of s u b je c t matter jurisdiction. E . Count Five - Civil Conspiracy In Nevada, "`an actionable conspiracy consists of a combination of two or more p e rs o n s who, by some concerted action, intend to accomplish an unlawful objective for the p u rp o s e of harming another, and damage results from the act or acts.'" Hilton Hotels Corp. v . Butch Lewis Prods., Inc., 862 P.2d 1207, 1210 (Nev. 1993) (quoting Sutherland v. Gross, 7 7 2 P.2d 1287, 1290 (Nev. 1989)). "To prevail in a civil conspiracy action, a plaintiff has to prove an explicit or tacit agreement between the tortfeasors." GES, Inc. v. Corbitt, 21 5

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P .3 d 11, 15 (Nev. 2001). P la in tif f s have presented no evidence raising a genuine issue of material fact re g a rd in g a conspiracy. Plaintiffs present no evidence of agreement, meeting of the minds, o r unlawful objective. The recent incident involving Plaintiffs' investigator and Defendant B re n t Steed ("Steed") does not alter this analysis, as only Steed was involved, and it does n o t suggest Steed conspired with anyone. F. Counts Six & Seven - Negligence T o establish a negligence claim, the plaintiff must show: "(1) the defendant had a d u ty to exercise due care towards the plaintiff; (2) the defendant breached the duty; (3) the b re a c h was an actual cause of the plaintiff's injury; (4) the breach was the proximate cause o f the injury; and (5) the plaintiff suffered damage." Perez v. Las Vegas Med. Ctr., 805 P .2 d 589, 590-91 (Nev. 1991). In Nevada, an employer "has a duty to use reasonable care in the training, supervision, and retention of his or her employees to make sure the e m p lo ye e s are fit for their positions." Hall v. SSF, Inc., 930 P.2d 94, 99 (Nev. 1996). A municipality's failure to train its employees may give rise to a constitutional v io la tio n redressable under § 1983 liability "where the failure to train amounts to deliberate in d if f e re n c e to the rights of persons with whom the employee comes into contact." Long v. C o u n ty of Los Angeles, 442 F.3d 1178, 1186 (9th Cir. 2006). A plaintiff making such a c la im must show the training program is inadequate and the inadequate training represents m u n ic ip a l policy. Id. In other words, municipal policymakers' "continued adherence . . . to a n approach that they know or should know has failed to prevent tortious conduct by e m p lo ye e s may establish the conscious disregard for the consequences of their action-the d e lib e ra te indifference-necessary to trigger municipal liability." Id. (quotation omitted). A s discussed above, as Plaintiffs present no evidence Defendants did anything b e yo n d enforcing regulations and ordinances applicable to Plaintiffs' property, Plaintiffs h a v e not presented evidence raising an issue of fact that Defendants breached any duty. As 6

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to negligent hiring, training, and supervision, Plaintiffs present no evidence of any incidents in either Johnson's or Lohman's background that would suggest negligent hiring. Plaintiffs p re s e n t no evidence regarding Johnson's or Lohman's training that would suggest negligent tra in in g . Plaintiffs present no evidence that any supervisor of Johnson or Lohman became a w a re of any misconduct on either employee's part and failed to correct it. Plaintiffs p re s e n t no evidence of the County's training program that would suggest it was deliberately in d if f e re n t to potential constitutional violations. Plaintiffs present no evidence that any n e g lig e n c e in hiring, training, or supervision was a causal factor in any violation, as P la in tif f s have failed to show disparate treatment, as discussed previously. The Court will g ra n t summary judgment on these claims. G. Joinder T h e joining CAA Defendants likewise are entitled to summary judgment. Plaintiffs cannot show an equal protection, due process, or takings violation as to any D e f e n d a n t. Plaintiffs present no evidence of civil conspiracy, negligent hiring, training, or s u p e rv is io n , or negligence as to the joining CAA Defendants. Further, Defendants Steed a n d Jimmy Floyd were involved in the firewall/sprinklers and septic system issues, re s p e c tiv e ly. As both of these issues required a final decision by a Nevada State official, th e s e Defendants did not make the decision about which Plaintiffs complain. The Court th e re f o re will grant summary judgment to the CAA Defendants as well. IT IS THEREFORE ORDERED that Defendants Motion for Summary Judgment (D o c . #53) is hereby GRANTED. Summary judgment is hereby granted in favor of all D e f e n d a n ts on counts one through three and counts five through seven of Plaintiffs' Second A m e n d e d Complaint. Count four is dismissed for lack of subject matter jurisdiction. D A T E D : November 30, 2010 _______________________________ PHILIP M. PRO United States District Judge 7