United States District Court, D. Nevada
OPINION & ORDER DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT (ECF NO. 67)
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.
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.
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.
Motion for Summary Judgment
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).
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.”
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.
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.
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