Wise v. Schreiber, et al.

Filing 18

ORDER granting Defendants' ECF No. 9 Motion to Dismiss or for Summary Judgment; denying as moot Plaintiff's ECF No. 13 Motion for Jury Trial; directing Clerk to enter judgment and close case. Signed by Judge Robert C. Jones on 2/17/2017. (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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TROY WISE,
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Plaintiff,
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vs.
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ANDREW SCHREIBER et al.,
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Defendants.
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3:15-cv-00462-RCJ-VPC
ORDER

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This case arises out of the seizure of allegedly stolen property. Pending before the Court

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is a motion to dismiss or for summary judgment.

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I.

FACTS AND PROCEDURAL HISTORY

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On April 26 and May 22–23, 2013, officers of the Sparks Police Department (“SPD”)

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raided the home of Plaintiff Troy Wise, seizing Plaintiff’s personal property (“the Property”).

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(Compl. 3–4, ECF No. 5). Defendants auctioned off the Property on June 23, 2013 and on

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unspecified dates thereafter, returning none of it to Plaintiff. (Id. 4).

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Plaintiff sued five detectives and a sergeant of the SPD, as well as the City of Sparks

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(“the City”) under 42 U.S.C. § 1983 in this Court for violations of various rights under the

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Fourth, Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution. Upon screening

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under 28 U.S.C. § 1915, the Court permitted a claim for unlawful seizure under the Fourth

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Amendment to proceed against seven individual Defendants and a claim for denial of due

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process to proceed against two of those individual Defendants. The Court dismissed the

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remaining claims and dismissed the City as a Defendant. Plaintiff did not amend. Defendants

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have moved to dismiss or for summary judgment.

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II.

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DISCUSSION
Defendants first argue that the claims are barred by the statute of limitations. Because a

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statute of limitations is an affirmative defense, a court cannot dismiss based thereupon unless the

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defense appears on the face of the pleading to be dismissed. United States ex rel. Air Control

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Techs., Inc. v. Pre Con Indus., Inc., 720 F.3d 1174, 1178 (9th Cir. 2013) (citing Von Saher v.

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Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010)). There is a two-

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year statute of limitations for § 1983 claims arising in Nevada. Perez v. Seevers, 869 F.2d 425,

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426 (9th Cir. 1989) (citing Nev. Rev. Stat. § 11.190(4)(e)).

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The Complaint was filed on September 8, 2015. The Complaint affirmatively alleges that

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the alleged wrongful seizure occurred on April 26, 2013 and that the seized items were given or

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auctioned away on June 23, 2013 and on one or more unspecified dates thereafter. (Compl. 3).

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As to items allegedly given away or auctioned off on June 23, 2013, the statute of limitations

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therefore bars the actions based on the affirmative allegations in the Complaint. It is possible

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based on the Complaint, however, that some items were given away or auctioned off after

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September 8, 2013. If so, the statute of limitations will not have run as to those items where the

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cause of action accrues at the date of sale (the due process claim) as opposed to the date of

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seizure (the unlawful seizure claim). In summary, the Court can dismiss the unlawful seizure

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claim as to all of the Property and can dismiss the due process claim as to any Property given

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away or sold before September 8, 2013 under the statute of limitations.

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Defendants may be entitled to summary judgment against the remainder of the due

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process claim. Defendants adduce evidence that all remaining Property seized from Plaintiff’s

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residence was returned to the owner, auctioned, destroyed, donated, or delivered to a third-party

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auctioneer no later than July 29, 2013, except for a cot, some gloves, a siphon pump kit, two

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televisions, a ladder, a pocket PC scanner, a sun shade, two monitors, a game camera, a heater, a

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speaker, a skateboard, and various power tools and hand tools designated for “department use.”

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(See Alt Aff., ECF No. 9-1; Chain of Custody Sheet, ECF No. 9-1, at 6). The Chain of Custody

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Sheet itself tends to show that some of the Property remained in SPD custody for “department

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use.” It is a fair inference that Property so designated remained in department custody after

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September 8, 2013. Defendants are therefore not entitled to summary judgment based on the

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statute of limitations as to the due process claim.

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Still, Defendants are entitled to summary judgment against the due process claim as a

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matter of law because Plaintiff failed to pursue an adequate state law remedy for the return of his

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property after having been given notice of the seizure. See City of W. Corvina v. Perkins, 525

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U.S. 234, 240 (1999). As Defendants note, Plaintiff was notified of the seizure no later than

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April 26, 2013 when SPD officers interviewed him (after he waived his Miranda rights) about

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the seizure and the reasons for it. (See Dach Aff., ECF No. 9-3). Separate notice of the state law

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remedy was not required. See id. at 241 (“Once the property owner is informed that his property

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has been seized, he can turn to [published, generally available state statutes and case law] to

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learn about the remedial procedures available to him. The City need not take other steps to

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inform him of his options.”). Nevada provides a remedy for the return of unlawfully seized or

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retained property both in pending criminal proceedings and via separate civil actions. See Nev.

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Rev. Stat. § 179.085.

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CONCLUSION

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IT IS HEREBY ORDERED that the Motion to Dismiss or for Summary Judgment (ECF

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No. 9) is GRANTED.
IT IS FURTHER ORDERED that the Motion for Jury Trial (ECF No. 13) is DENIED as

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moot.

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IT IS FURTHER ORDERED that the Clerk shall enter judgment and close the case.

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IT IS SO ORDERED.

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DATED: This 17th dayJanuary, 2017.
Dated this 25th day of of February, 2017.

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_____________________________________
ROBERT C. JONES
United States District Judge

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