United States District Court, D. Nevada
C. JONES United States District Judge
case arises out of the seizure of allegedly stolen property.
Pending before the Court is a motion to dismiss or for
FACTS AND PROCEDURAL HISTORY
April 26 and May 22-23, 2013, officers of the Sparks Police
Department (“SPD”) raided the home of Plaintiff
Troy Wise, seizing Plaintiff's personal property
(“the Property”). (Compl. 3-4, ECF No. 5).
Defendants auctioned off the Property on June 23, 2013 and on
unspecified dates thereafter, returning none of it to
Plaintiff. (Id. 4).
sued five detectives and a sergeant of the SPD, as well as
the City of Sparks (“the City”) under 42 U.S.C.
§ 1983 in this Court for violations of various rights
under the Fourth, Fifth, Sixth, and Fourteenth Amendments to
the U.S. Constitution. Upon screening under 28 U.S.C. §
1915, the Court permitted a claim for unlawful seizure under
the Fourth Amendment to proceed against seven individual
Defendants and a claim for denial of due process to proceed
against two of those individual Defendants. The Court
dismissed the remaining claims and dismissed the City as a
Defendant. Plaintiff did not amend. Defendants have moved to
dismiss or for summary judgment.
first argue that the claims are barred by the statute of
limitations. Because a statute of limitations is an
affirmative defense, a court cannot dismiss based thereupon
unless the defense appears on the face of the pleading to be
dismissed. United States ex rel. Air Control Techs., Inc.
v. Pre Con Indus., Inc., 720 F.3d 1174, 1178 (9th Cir.
2013) (citing Von Saher v. Norton Simon Museum of Art at
Pasadena, 592 F.3d 954, 969 (9th Cir. 2010)). There is a
two-year statute of limitations for § 1983 claims
arising in Nevada. Perez v. Seevers, 869 F.2d 425,
426 (9th Cir. 1989) (citing Nev. Rev. Stat. §
Complaint was filed on September 8, 2015. The Complaint
affirmatively alleges that the alleged wrongful seizure
occurred on April 26, 2013 and that the seized items were
given or auctioned away on June 23, 2013 and on one or more
unspecified dates thereafter. (Compl. 3). As to items
allegedly given away or auctioned off on June 23, 2013, the
statute of limitations therefore bars the actions based on
the affirmative allegations in the Complaint. It is possible
based on the Complaint, however, that some items were given
away or auctioned off after September 8, 2013. If so, the
statute of limitations will not have run as to those items
where the cause of action accrues at the date of sale (the
due process claim) as opposed to the date of seizure (the
unlawful seizure claim). In summary, the Court can dismiss
the unlawful seizure claim as to all of the Property and can
dismiss the due process claim as to any Property given away
or sold before September 8, 2013 under the statute of
may be entitled to summary judgment against the remainder of
the due process claim. Defendants adduce evidence that all
remaining Property seized from Plaintiff's residence was
returned to the owner, auctioned, destroyed, donated, or
delivered to a third-party auctioneer no later than July 29,
2013, except for a cot, some gloves, a siphon pump kit, two
televisions, a ladder, a pocket PC scanner, a sun shade, two
monitors, a game camera, a heater, a speaker, a skateboard,
and various power tools and hand tools designated for
“department use.” (See Alt Aff., ECF No.
9-1; Chain of Custody Sheet, ECF No. 9-1, at 6). The Chain of
Custody Sheet itself tends to show that some of the Property
remained in SPD custody for “department use.” It
is a fair inference that Property so designated remained in
department custody after September 8, 2013. Defendants are
therefore not entitled to summary judgment based on the
statute of limitations as to the due process claim.
Defendants are entitled to summary judgment against the due
process claim as a matter of law because Plaintiff failed to
pursue an adequate state law remedy for the return of his
property after having been given notice of the seizure.
See City of W. Corvina v. Perkins, 525 U.S. 234, 240
(1999). As Defendants note, Plaintiff was notified of the
seizure no later than April 26, 2013 when SPD officers
interviewed him (after he waived his Miranda rights)
about the seizure and the reasons for it. (See Dach
Aff., ECF No. 9-3). Separate notice of the state law remedy
was not required. See Id. at 241 (“Once the
property owner is informed that his property has been seized,
he can turn to [published, generally available state statutes
and case law] to learn about the remedial procedures
available to him. The City need not take other steps to
inform him of his options.”). Nevada provides a remedy
for the return of unlawfully seized or retained property both
in pending criminal proceedings and via separate civil
actions. See Nev. Rev. Stat. § 179.085.
HEREBY ORDERED that the Motion to Dismiss or for Summary
Judgment (ECF No. 9) is GRANTED.
FURTHER ORDERED that the Motion for Jury Trial (ECF No. ...