Shea v. U.S. WCSU

Filing 114

ORDER granting in part and denying in part ECF No. 96 Motion for Summary Judgment; directing Clerk to enter judgment in favor of Defendants Noah Boyer and Sean McVickers and close case. Signed by Judge Miranda M. Du on 3/17/2017. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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THOMAS GREGORY SHEA,
Plaintiff,

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Case No. 3:14-cv-00354-MMD-VPC
ORDER

v.
UNITED STATES, et al.,

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Defendants.

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I.

SUMMARY

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Plaintiff Thomas Gregory Shea, proceeding pro se, initiated this action to assert

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claims under 42 U.S.C. § 1983 and under state laws for conduct that allegedly occurred

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while Shea was conducting business at the Second Judicial District Court and utilizing

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the resources at its law library (“Law Library”). Before the Court is Defendants Noah Boyer

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and Sean McVickers’ Motion for Summary Judgment (“Motion”). (ECF No. 96.) Shea’s

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response was due on September 16, 2016. (ECF No 96.) The Court granted Shea’s two

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requests for extension of time to file his response. (ECF Nos. 102, 107.) In his response

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filed on November 14, 2016, Shea claimed he was unable to respond because “he was

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a victim of theft of every document the defendants reference.” (ECF No. 108.) He

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indicated he opposes summary judgment until he is able to obtain records. (Id.) On

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December 28, 2016, Shea filed a motion to supplement his response to the Motion. (ECF

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No. 110.) The Court will grant Shea’s motion to supplement and consider his

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supplemental opposition (“Opposition”) (ECF No. 110-1). For the reasons discussed

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below, the Motion is granted in part and denied in part.

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II.

RELEVANT BACKGROUND

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After screening the Amended Complaint (“FAC”), the Court permitted Shea to

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proceed on the following claims against Defendants Boyer and McVickers:1 Count I,

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alleging false light; Count II, alleging First Amendment retaliation; and Count V, alleging

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Fourth Amendment warrantless search. (ECF No. 31.)

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The facts relevant to these remaining claims, taken from the FAC, are as follows.

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On July 10, 2012, Shea visited the Law Library to conduct legal research when numerous

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deputies, including Boyer and McVickers, approached him. (ECF No 30 at 13.) They

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asked about his purpose for visiting the Law Library. (Id. at 14.) McVickers looked through

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Shea’s legal papers and demanded to know the exact nature of Shea’s visit. (Id.)

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McVickers asked if Shea recalled him, and according to Shea, he had filed a grievance

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against McVickers five years before the filing of the complaint. (Id. at 14, 30-31.)

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McVickers informed Shea that the filing clerk at the Law Library, Anita, had reported Shea

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for harassing behavior, instructed him to leave the Law Library and told him he must “stop

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all this civil law stuff.” (Id. at 14.) Shea later spoke with Anita who denied having reported

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any harassment. (Id.) Shea returned to the Law Library the next day and overheard a

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security officer radioed that “Mr. Shea is in the building.” (Id. at 18.) Photos identifying him

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were placed near the metal detectors at the courthouse and Law Library buildings within

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plain view of the public. (Id. at 19.) McVickers subsequently approached Shea when he

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was at the Law Library and during that encounter, McVickers grabbed Shea’s legal

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papers, leafed through them and made threatening and demeaning comments about the

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scars on Shea’s face. (Id. at 21-22.) Shea subsequently filed complaints with the Washoe

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County Sheriff’s Office (“WCSO”) about Defendants’ harassing conduct. (ECF No. 30 at

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65, 68-69.)

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1Plaintiff

was also permitted to proceed against other Doe Defendants.
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III.

LEGAL STANDARD

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“The purpose of summary judgment is to avoid unnecessary trials when there is

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no dispute as to the facts before the court.” Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric.,

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18 F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is appropriate when the

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pleadings, the discovery and disclosure materials on file, and any affidavits “show there

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is no genuine issue as to any material fact and that the movant is entitled to judgment as

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a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). An issue is “genuine”

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if there is a sufficient evidentiary basis on which a reasonable fact-finder could find for the

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nonmoving party and a dispute is “material” if it could affect the outcome of the suit under

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the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). Where

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reasonable minds could differ on the material facts at issue, however, summary judgment

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is not appropriate. See id. at 250-51. “The amount of evidence necessary to raise a

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genuine issue of material fact is enough ‘to require a jury or judge to resolve the parties'

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differing versions of the truth at trial.’” Aydin Corp. v. Loral Corp., 718 F.2d 897, 902 (9th

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Cir. 1983) (quoting First Nat’l Bank v. Cities Service Co., 391 U.S. 253, 288-89 (1968)).

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In evaluating a summary judgment motion, a court views all facts and draws all inferences

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in the light most favorable to the nonmoving party. Kaiser Cement Corp. v. Fishbach &

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Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986).

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The moving party bears the burden of showing that there are no genuine issues of

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material fact. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). Once the

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moving party satisfies Rule 56’s requirements, the burden shifts to the party resisting the

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motion to “set forth specific facts showing that there is a genuine issue for trial.” Anderson,

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477 U.S. at 256. The nonmoving party “may not rely on denials in the pleadings but must

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produce specific evidence, through affidavits or admissible discovery material, to show

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that the dispute exists,” Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991),

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and “must do more than simply show that there is some metaphysical doubt as to the

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material facts.” Orr v. Bank of Am., 285 F.3d 764, 783 (9th Cir. 2002) (quoting Matsushita

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Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). “The mere existence
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of a scintilla of evidence in support of the plaintiff’s position will be insufficient.” Anderson,

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477 U.S. at 252.

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IV.

DISCUSSION

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A.

Count II: First Amendment Retaliation

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42 U.S.C. § 1983 provides a mechanism for a plaintiff to bring a claim alleging that

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public officials, acting in their official capacity, took action to retaliate against, obstruct, or

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chill the plaintiff’s First Amendment rights. Gibson v United States, 781 F.2d 1334, 1338

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(9th Cir. 1986). In support of such a claim, a plaintiff must show that “(1) [the plaintiff]

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engaged in constitutionally protected activity; (2) the defendant's actions would ‘chill a

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person of ordinary firmness’ from continuing to engage in the protected activity; and (3)

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the protected activity was a substantial motivating factor in the defendant's conduct —

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i.e., that there was a nexus between the defendant's actions and an intent to chill speech.”

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Arizona Students’ Ass’n. v. Arizona Bd. of Regents, 824 F.3d 858, 867 (9th Cir. 2016)

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(quoting O’Brien v. Welty, 818 F.3d 920, 933-34 (9th Cir. 2016). Defendants argue that

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Shea cannot show these three elements.

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Shea alleges McVickers and Boyer harassed him in retaliation for “unfavorable

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conduct complaint and prior grievance approximately five years from the date of this

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complaint” and for “current civil cases then at the Second Judicial District Court.” (ECF

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No. 30 at 30-31.) Thus, the alleged protected activities are “unfavorable conduct

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complaint,” a grievance from five years before the filing of this action and civil lawsuits

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filed in the Second Judicial District Court.

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Defendants argue that Shea offers no evidence to show he filed a grievance

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against McVickers five years before the filing of this case, a review of WCSO’s detention

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records show no such grievance was ever filed, and McVickers was not aware of any

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such grievance. (ECF No. 96 at 8.) Shea’s supplemental response offers no evidence to

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dispute this point. Thus, the Court finds that it is undisputed that Shea did not file

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grievance against McVickers five years before the filing of the complaint.

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Even assuming that Shea did file a grievance against McVickers, the Court agrees

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with Defendants that Shea cannot show any nexus between the constitutional protected

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activities and Defendants’ alleged harassment of him during the encounters at the Law

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Library. First, Shea offers no evidence that McVickers was aware that Shea filed any

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grievance against him to even suggest any nexus between Shea’s filing of the grievance

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and McVickers’ alleged harassment of him. Second, according to Shea, McVickers and

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Boyer harassed him on July 10, 2012, in that McVickers looked through his legal papers,

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asked him what he was doing in the Law Library and told him to “stop all this civil law

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stuff.” (ECF No. 30 at 13-14.) McVickers allegedly engaged in the same harassing

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conduct when Shea encountered him on July 24, 2012.2 However, the first “unfavorable

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conduct” complaint that Shea filed with WCSO was made on July 16, 2016.3 (ECF No. 30

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at 65.) Defendants’ alleged harassing conduct thus occurred before Shea’s complaints to

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WCSO such that there is no nexus between Defendants’ alleged harassment of Shea

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and his complaints. Finally, with respect to the filing of civil actions, Shea does not allege

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any facts to show his filing of civil actions was a substantial motivating factor in

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Defendants’ alleged harassment of him. In fact, Shea does not allege that Defendants

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are even aware of the nature of these civil actions to create an inference as to a retaliatory

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motive on the part of Defendants.

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The Court thus agrees with Defendants that Shea cannot establish the first and

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third elements to support his First Amendment retaliation claim even if the Court views all

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facts and draws all inferences in the light most favorable to Plaintiff.

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2This

is based on Shea’s July 24, 2012 complaint to WCSO. (ECF No. 30 at 68-

69.)
3Exhibit

2 to Shea’s FAC is a copy of a complaint sent on July 17, 2012, concerning
an incident dated July 16, 2012. (ECF No. 30 at 65.) Exhibit 3 is a copy of a complaint for
an incident on July 24, 2012. (Id. at 68-69.) Defendants offer a copy of Shea’s complaints
on July 28, 2012, about alleged incidents between July 10 and July 26, 2012. (ECF No.
96 at 17-20.)
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B.

Count V: Fourth Amendment Warrantless Search

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Count V is based on Shea’s allegations that Defendants searched his legal

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documents while he was in the Law Library. (ECF No. 30 at 45.) Defendants argue that

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Shea has failed to offer any evidence in support of his allegations that they searched and

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seized his documents while he was in the Law Library. (ECF No. 96 at 1.) They argue

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that Plaintiff complained about other alleged harassing conduct but in these complaints

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he did not assert that they searched or seized his papers. (Id.) Defendants are correct

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that the complaints Shea filed with WCSO did not claim that Defendants seized or

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searched his documents while he was at the Law Library. (ECF No. 30 at 65-69; ECF No.

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96 at 17-20.) In his Opposition, Shea makes general allegations that he was searched

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and his property was seized and McVickers “mauled the papers on [Shea’s] desk at the

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Law Library.” (ECF No. 110-1 at 3-4.) However, these general allegations are beyond the

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allegations against Boyer and McVickers as alleged in the FAC. In the FAC, Shea alleges

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that McVickers looked through his legal papers, not that he seized them or destroyed

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them. (ECF No. 30 at 14, 21-22.) Moreover, these general allegations in an unverified

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response are not sufficient to create a material dispute to preclude summary judgment.

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Setting aside that the allegations are not set forth in an affidavit or sworn statement, these

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allegations are not specific evidence to show that a dispute exists. See Bhan, 929 F.2d

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at 140.
The Court agrees with Defendants that they are entitled to summary judgment on

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Count V.

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C.

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The Court will not address Defendants’ arguments with respect to Plaintiff’s state

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law claim for false light alleged in Count I as the Court declines to exercise supplemental

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jurisdiction over this remaining claim pursuant to 28 U.S.C. § 1367(c). The false light claim

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in Count I will be dismissed without prejudice.

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Count I: False Light

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V.

CONCLUSION

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The Court notes that the parties made several arguments and cited to several

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cases not discussed above. The Court has reviewed these arguments and cases and

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determines that they do not warrant discussion as they do not affect the outcome of the

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Motion.

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It is therefore ordered that Defendants’ Motion for Summary Judgment (ECF

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No.96) is granted in part and denied in part. It is granted with respect to Counts II and V.

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It is denied with respect to Count I for false light. Count I is dismissed without prejudice

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as the Court declines to exercise supplemental jurisdiction over this remaining state law

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claim.
The Clerk is directed to enter judgment in favor of Defendants Noah Boyer and
Sean McVickers and close this case.

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DATED THIS 17th day of March 2017.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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