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McLellan v. Perry

United States District Court, D. Nevada

March 27, 2014

CHRIS PERRY, in his individual capacity; and in his official capacity as Director of the Department of Public Safety; JAROLD HAFEN, in his individual capacity; TONY ALMARAZ, Defendants.

ORDER (Def.'s Motion for Summary Judgment - dkt. no. 44)

MIRANDA M. DU, District Judge.


Before the Court is Defendants Chris Perry, Jarold Hafen, and Tony Almaraz's Motion for Summary Judgment. (Dkt. no. 44.) For the reasons discussed below, the motion is granted.


This is a § 1983 case arising from the termination of Plaintiff Rick McLellan's ("McLellan") employment with the Nevada Highway Patrol ("NHP"). McLellan was employed as a Trooper II with the NHP. During all relevant times McLellan was also the President of the Nevada Department of Public Safety Officer's Association ("NDPSA"). Defendant Tony Almaraz, Chief of the NHP, terminated McLellan's employment for false statements McLellan made in a dispute resolution meeting and then repeated in subsequent meetings, including an official investigation conducted by the Office of Professional Responsibility ("OPR"). Defendants Chris Perry and Jarold Hafen sustained Almaraz's decision to terminate McLellan's employment.

Following his termination, McLellan filed a whistleblower complaint and pursued an administrative appeal of his termination. At his post-termination hearing, McLellan argued that the false statements were made in his capacity as NDPSA President and the investigation opened into those statements - in which McLellan subsequently repeated false statements - was in retaliation for McLellan's allegations of improper conduct made against his superior officer. The Hearing Officer determined that McLellan's whistleblower complaint had no merit and that although McLellan may have been acting in the capacity of NDPSA's President at the time of the original false statements and its first repetition, he was acting in the capacity of an employee at the time he repeated the false statements to the OPR investigators.

McLellan had an opportunity to appeal the Hearing Officer's decision to state district court under NRS 233B.135, but instead filed this action under 42 U.S.C. § 1983. McLellan alleges that his termination violated his First Amendment free speech rights. Defendants now move for summary judgment.


A. Legal Standard

The purpose of summary judgment is to avoid unnecessary trials when there is no dispute as to the facts before the court. Nw. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." See Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986) (citing Fed.R.Civ.P. 56(c)). An issue is "genuine" if there is a sufficient evidentiary basis on which a reasonable fact-finder could find for the nonmoving party and a dispute is "material" if it could affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). Where reasonable minds could differ on the material facts at issue, however, summary judgment is not appropriate. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). In evaluating a summary judgment motion, a court views all facts and draws all inferences in the light most favorable to the nonmoving party. Kaiser Cement Corp. v. Fishbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986). "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge...." Anderson, 477 U.S. at 255.

The moving party bears the burden of informing the court of the basis for its motion, together with evidence demonstrating the absence of any genuine issue of material fact. Celotex, 477 U.S. at 323. Once the moving party satisfies Rule 56's requirements, the burden shifts to the party resisting the motion to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256. The nonmoving party "may not rely on denials in the pleadings but must produce specific evidence, through affidavits or admissible discovery material, to show that the dispute exists, " Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), and "must do more than simply show that there is some metaphysical doubt as to the material facts." Bank of Am. v. Orr, 285 F.3d 764, 783 (9th Cir. 2002) (internal citations omitted). "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient." Anderson, 477 U.S. at 252. Although the parties may submit evidence in an inadmissible form, the Court may only consider evidence which might be admissible at trial in ruling on a motion for summary judgment. Fed.R.Civ.P. 56(c).

B. Analysis

Defendants argue that they are entitled to judgment as a matter of law for three reasons. First, Defendants assert that McLellan's claims are precluded by the adverse determination of the Hearing Officer and McLellan's failure to appeal that decision to the state court. Second, Defendants argue that McLellan cannot show his termination deprived him of his First Amendment rights. Finally, Defendants aver that their actions are covered by qualified ...

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