Diaz et al v. Wheeler

Filing 33

ORDER granting ECF No. 30 Motion to Lift Stay, case stay lifted; giving Defendant 20 days to file a renewed motion for summary judgment, if any. Signed by Judge Larry R. Hicks on 7/19/2016. (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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***
JSB, a minor, by his parents and natural 3:14-cv-0436-LRH-WGC
guardians MARINA DIAZ and JOSE DIAZ,

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Plaintiff,

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ORDER
v.
CARSON CITY DEPUTY
HARRY W. WHEELER,

SHERIFF

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Defendant.

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Before the court is plaintiff JSB’s motion to lift stay. ECF No. 30. Defendant

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Carson City Deputy Sheriff Harry W. Wheeler (“Deputy Wheeler”) filed an opposition

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(ECF No. 31) to which JSB replied (ECF No. 32).

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On August 19, 2014, JSB, a minor, by and through his parents and natural

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guardians Marina Diaz and Jose Diaz, filed the underlying complaint against Deputy

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Wheeler alleging two causes of action related to an altercation that took place on May

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20, 2014: (1) a Section 1983 claim for excessive force; and (2) common law assault and

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battery. ECF No. 1.

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While this action was pending, juvenile proceedings were commenced against

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JSB for Interference with a City or Sherriff’s Officer in violation of Carson City Municipal

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Code §8.04.050 related to the May 20, 2014 altercation. On October 14, 2014, after a

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fact-finding hearing, the Juvenile Court Master found that on May 20, 2014, JSB

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unlawfully hindered, obstructed, resisted, delayed and/or engaged in physical behavior

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to prevent cooperation with law enforcement officers in violation of the municipal code.

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JSP appealed that decision arguing that the master’s finding was in error as JSB was

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not allowed to present evidence that his interference with the officers was caused by,

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and a direct result of, Deputy Wheeler’s alleged use of excessive force.

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A second fact-finding hearing was held on May 20, 2015, by a different Juvenile

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Court Master during which JSB presented evidence of Deputy Wheeler’s alleged

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excessive force. On June 1, 2015, the new Juvenile Court Master issued a finding that

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that JSB had violated Carson City Municipal Code §8.04.050 beyond a reasonable

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doubt, and that Deputy Wheeler had not engaged in excessive force causing JSB’s

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conduct. JSB again appealed the special master’s finding.

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While JSB’s appeal was pending, Deputy Wheeler filed a motion for summary

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judgment in this action. ECF No. 16. After the motion for summary judgment was filed,

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state court Judge James Wilson issued an order affirming the Juvenile Court Masters’

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findings of fact that JSB had committed the offense of Interference with a City or

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Sherriff’s Officer as defined by Carson City Municipal Code §8.04.050. Subsequently,

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on October 23, 2015, JSB filed an appeal of Judge Wilson’s order to the Nevada

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Supreme Court. In response, this court denied Deputy Wheeler’s motion for summary

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judgment without prejudice, stating that the court would allow Deputy Wheeler to re-file

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the motion subsequent to the outcome of JSB’s appeal. ECF No. 28. In that same order,

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the court stayed this action pending JSB’s appeal. Id.

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On March 5, 2016, JSB filed a notice with the court indicating that the Nevada

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Supreme

Court

had

found

Carson

City

Municipal

Code

§8.04.050

to

be

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unconstitutionally vague. ECF No. 29. The notice also stated that on March 3, 2016,

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Judge Russell of the First Judicial District Court entered an order dismissing the charge

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against JSB and vacating the Juvenile Masters’ findings of fact. Id. Thereafter, JSB filed

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the present motion to lift stay. ECF No. 30.

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The court has reviewed the documents on file in this matter and finds that

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because JSB’s appeal to the Nevada Supreme Court has concluded, the stay entered

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on November 24, 2015, should be lifted. Accordingly, the court shall grant JSB’s motion

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and lift the stay in this action. Similarly, in accordance with the court’s prior order,

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Deputy Wheeler is granted leave to file a renewed motion for summary judgment.

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IT IS THEREFORE ORDERED that plaintiff’s motion to lift stay (ECF No. 30) is

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GRANTED. The stay entered in this action, 3:14-cv-0436-LRH-WGC, is LIFTED,

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effective immediately.

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IT IS FURTHER ORDERED that defendant shall have twenty (20) days after
entry of this order to file a renewed motion for summary judgment, if any.

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IT IS SO ORDERED.

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DATED this 19th day of July, 2016.

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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE