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Foley v. Arostegui

United States District Court, D. Nevada

January 31, 2018

LOREA AROSTEGUI, et al., Defendants.




         Before the Court is Defendants' Motion for Summary Judgment. ECF No. 67. For the reasons stated below, the motion is granted in part and denied in part.


         On March 10, 2014, Plaintiff Michael Foley filed a civil rights lawsuit against Clark County and Lorea Arostegui, Georgina Stuart, Deborah Croshaw, Lisa Reese, and Lisa Ruiz-Lee, all of whom are Clark County Family Services employees. ECF No. 5. 2. Plaintiff alleged the following causes of action: (1) First Amendment claim regarding the right to petition the government for redress of grievances; (2) Fourth Amendment claim arising from an unlawful search and seizure; (3) Due Process and Equal Protection claims under the Fifth and Fourteenth Amendments; (4) Conspiracy to Violate the Right to Life, Liberty, Property, Due Process and Equal Protection of the Laws; and (5) Intentional Infliction of Emotional Distress. Defendants filed a Motion to Dismiss the Amended Complaint on January 20, 2014. ECF No. 28. At a hearing September 21, 2015, the Court dismissed all of Plaintiff's claims without prejudice, with the exception of the Due Process and First Amendment retaliation claims. ECF No. 42. At a hearing on August 24, 2016, the Court ordered Plaintiff to file his Second Amended Complaint, which was filed on September 2, 2016. ECF No. 62. The Second Amended Complaint includes all of the claims brought in the First Amended Complaint. Id. Defendants filed the instant Motion for Summary Judgment on January 3, 2017. ECF No. 67. Plaintiff filed a Response and a Motion for Pro Bono Counsel on January 24, 2017. ECF Nos. 69, 70. Defendants filed a Reply on February 3, 2017. ECF No. 71.


         A. Motion for Summary Judgment

         Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); accord Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). When considering the propriety of summary judgment, the court views all facts and draws all inferences in the light most favorable to the nonmoving party. Gonzalez v. City of Anaheim, 747 F.3d 789, 793 (9th Cir. 2014). If the movant has carried its burden, the non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Scott v. Harris, 550 U.S. 372, 380 (2007) (alteration in original) (internal quotation marks omitted).

         When a litigant is pro se, “we must consider as evidence in his opposition to summary judgment all of [his] contentions offered in motions and pleadings, where such contentions are based on personal knowledge and set forth facts that would be admissible in evidence, and where [he] attested under penalty of perjury that the contents of the motions or pleadings are true and correct.” Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004). The Ninth Circuit has held that a verified complaint may serve as an opposing affidavit under Rule 56. Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir. 1995). To function as an opposing affidavit, the verified complaint must be based on personal knowledge and set forth specific facts admissible in evidence. Id. The allegations cannot be “based purely on [a litigant's] belief.” Id.


         As a preliminary matter, the Court notes that the Defendants failed to include an authenticating declaration with their Motion for Summary Judgment. They included an authenticating declaration with their Reply brief, however, and so the Court will consider the exhibits submitted with their Motion for Summary Judgment. Additionally, Plaintiff's Response declines to provide a statement of facts. However, the Court considers allegations in pleadings of which the pro se plaintiff would have personal knowledge. Jones, 393 F.3d at 923. Based on the record, the Court finds the following relevant facts to be undisputed.

         On November 4, 2011, Plaintiff filed a civil rights suit naming his ex-wife, Patricia Foley, and Defendant Georgina Stuart as defendants, among others. Patricia Foley was served on December 11, 2011 and answered on January 12, 2012. Defendant Stuart was served on January 31, 2012. On January 23, 2012, Defendant Arostegui opened an investigation into possible mental abuse of Plaintiff's daughter, TMF.

         On March 20, 2012, Defendants sent a letter to Plaintiff's last known address stating the following:

On January 23, 2012, the Clark County Department of Family Services, Child Protective Services, received a report alleging Mental Injury of [TMF]. Based upon the Division's investigation of the report, it has been determined there is credible evidence that Mental Injury as defined in NRS 432.B has occurred and has been substantiated.
Pursuant to NRS 432.B.310, the Division is required to submit identifying data to the State Central Registry for each investigation ...

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