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Shea v. United States

United States District Court, D. Nevada

March 17, 2017

UNITED STATES, et al., Defendants.



         I. SUMMARY

         Plaintiff Thomas Gregory Shea, proceeding pro se, initiated this action to assert claims under 42 U.S.C. § 1983 and under state laws for conduct that allegedly occurred while Shea was conducting business at the Second Judicial District Court and utilizing the resources at its law library (“Law Library”). Before the Court is Defendants Noah Boyer and Sean McVickers' Motion for Summary Judgment (“Motion”). (ECF No. 96.) Shea's response was due on September 16, 2016. (ECF No 96.) The Court granted Shea's two requests for extension of time to file his response. (ECF Nos. 102, 107.) In his response filed on November 14, 2016, Shea claimed he was unable to respond because “he was a victim of theft of every document the defendants reference.” (ECF No. 108.) He indicated he opposes summary judgment until he is able to obtain records. (Id.) On December 28, 2016, Shea filed a motion to supplement his response to the Motion. (ECF No. 110.) The Court will grant Shea's motion to supplement and consider his supplemental opposition (“Opposition”) (ECF No. 110-1). For the reasons discussed below, the Motion is granted in part and denied in part.


         After screening the Amended Complaint (“FAC”), the Court permitted Shea to proceed on the following claims against Defendants Boyer and McVickers:[1] Count I, alleging false light; Count II, alleging First Amendment retaliation; and Count V, alleging Fourth Amendment warrantless search. (ECF No. 31.)

         The facts relevant to these remaining claims, taken from the FAC, are as follows. On July 10, 2012, Shea visited the Law Library to conduct legal research when numerous deputies, including Boyer and McVickers, approached him. (ECF No 30 at 13.) They asked about his purpose for visiting the Law Library. (Id. at 14.) McVickers looked through Shea's legal papers and demanded to know the exact nature of Shea's visit. (Id.) McVickers asked if Shea recalled him, and according to Shea, he had filed a grievance against McVickers five years before the filing of the complaint. (Id. at 14, 30-31.) McVickers informed Shea that the filing clerk at the Law Library, Anita, had reported Shea for harassing behavior, instructed him to leave the Law Library and told him he must “stop all this civil law stuff.” (Id. at 14.) Shea later spoke with Anita who denied having reported any harassment. (Id.) Shea returned to the Law Library the next day and overheard a security officer radioed that “Mr. Shea is in the building.” (Id. at 18.) Photos identifying him were placed near the metal detectors at the courthouse and Law Library buildings within plain view of the public. (Id. at 19.) McVickers subsequently approached Shea when he was at the Law Library and during that encounter, McVickers grabbed Shea's legal papers, leafed through them and made threatening and demeaning comments about the scars on Shea's face. (Id. at 21-22.) Shea subsequently filed complaints with the Washoe County Sheriff's Office (“WCSO”) about Defendants' harassing conduct. (ECF No. 30 at 65, 68-69.)


         “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, the discovery and disclosure materials on file, and any affidavits “show there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). 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. See Id. at 250-51. “The amount of evidence necessary to raise a genuine issue of material fact is enough ‘to require a jury or judge to resolve the parties' differing versions of the truth at trial.'” Aydin Corp. v. Loral Corp., 718 F.2d 897, 902 (9th Cir. 1983) (quoting First Nat'l Bank v. Cities Service Co., 391 U.S. 253, 288-89 (1968)). 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).

         The moving party bears the burden of showing that there are no genuine issues of material fact. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). 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.” Orr v. Bank of Am., 285 F.3d 764, 783 (9th Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). “The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient.” Anderson, 477 U.S. at 252.


         A. Count II: First Amendment Retaliation

         42 U.S.C. § 1983 provides a mechanism for a plaintiff to bring a claim alleging that public officials, acting in their official capacity, took action to retaliate against, obstruct, or chill the plaintiff's First Amendment rights. Gibson v United States, 781 F.2d 1334, 1338 (9th Cir. 1986). In support of such a claim, a plaintiff must show that “(1) [the plaintiff] engaged in constitutionally protected activity; (2) the defendant's actions would ‘chill a person of ordinary firmness' from continuing to engage in the protected activity; and (3) the protected activity was a substantial motivating factor in the defendant's conduct - i.e., that there was a nexus between the defendant's actions and an intent to chill speech.” Arizona Students' Ass'n. v. Arizona Bd. of Regents, 824 F.3d 858, 867 (9th Cir. 2016) (quoting O'Brien v. Welty, 818 F.3d 920, 933-34 (9th Cir. 2016). Defendants argue that Shea cannot show these three elements.

         Shea alleges McVickers and Boyer harassed him in retaliation for “unfavorable conduct complaint and prior grievance approximately five years from the date of this complaint” and for “current civil cases then at the Second Judicial District Court.” (ECF No. 30 at 30-31.) Thus, the alleged protected activities are “unfavorable conduct complaint, ” a grievance from five years before the filing of this action and civil lawsuits filed in the Second Judicial District Court.

         Defendants argue that Shea offers no evidence to show he filed a grievance against McVickers five years before the filing of this case, a review of WCSO's detention records show no such grievance was ever filed, and McVickers was not aware of any such grievance. (ECF No. 96 at 8.) Shea's supplemental response offers no evidence to dispute this point. Thus, the Court finds that it is ...

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