United States District Court, D. Nevada
James W. Lescinsky, Plaintiff
v.
Clark County School District, et al., Defendants
ORDER GRANTING MOTIONS TO DISMISS AND DENYING
ANTI-SLAPP MOTIONS AS MOOT [ECF NOS. 11, 13, 18, 19]
U.S.
DISTRICT JUDGE JENNIFER A. DORSEY
In
2015, Clark County School District Police Officer James
Lescinsky responded to school fight in which he was accused
of using excessive force against a student and teacher. He
was reassigned to another school and ultimately acquitted of
the charges. He now sues the school district, its police
department, various school officials, and the principal
investigator for racial discrimination under 42 U.S.C. §
1983, municipal liability under Monell, and
state-law claims for racketeering, intrusion upon seclusion,
defamation, and intentional infliction of emotional
distress.[1] Defendants move to dismiss Lescinsky's
claims as either time-barred, privileged, or otherwise
deficient. They also move to dismiss under Nevada's
anti-SLAPP statute, NRS § 41.660, claiming that this is
a meritless lawsuit targeting First Amendment protected
speech. Lescinsky's delay in filing this lawsuit has
rendered all but his racketeering claim time-barred, so I
dismiss those claims with prejudice as untimely. Because
Lescinsky did not plead racketeering with the specificity
required, I dismiss that claim without prejudice and with
leave to amend. And because I am dismissing all claims in the
original compliant, I also deny the anti-SLAPP motions as
moot.
Background
[2]
On May
21, 2015, Lescinsky responded to a fight between students in
the cafeteria at Jeffrey Behavioral School.[3] Two students had
been fighting, and school staff had removed one of the
students from the cafeteria.[4] The second student began fighting
with staff, and Lescinsky attempted to intervene and, in the
process, he struck a teacher with his baton, fracturing her
finger.[5] The student ran off, so Lescinsky pursued
her into the school's hallways.[6] The student alleged that
Lescinsky slammed her into the wall and the
ground.[7]
Clark
County School District Police Department (CCSDPD) Detective
for Internal Affairs Christopher Klemp and Assistant
Superintendent of Clark County School District (CCSD) Tammy
Malich investigated the incident.[8] Detective Klemp notified
Lescinsky “that he was facing possible disciplinary
action” and that he had submitted the case to the
Federal Bureau of Investigation (FBI).[9] Lescinsky was
assigned to another school that summer and placed on
administrative leave the following February.[10] In May 2016,
he was served with summons for a federal criminal complaint
“charging him with deprivation of rights under color of
law, tampering with a witness, and falsification of a
document.”[11] After a four-day that began on August 8,
2016, this court entered a judgment of acquittal on August
15, 2016.[12] Lescinsky was reinstated, and the
administrative investigation was closed.[13]
Lescinsky
then filed this complaint, asserting causes of action for
racial discrimination under 42 U.S.C. § 1983 and
alleging that CCSD, CCSDPD, former Superintendent Pat
Skorkowsky, Assistant Superintendent Tammy Malich, Chief
Academic Officer Mike Barton, Chief of Police James Ketsaa,
Police Captain Kenneth Young (the CCSD Defendants), and
former CCSDPD Detective for Internal Affairs Christopher
Klemp are liable under a Monell theory of liability,
and for racketeering, intrusion upon seclusion, defamation,
and intentional infliction of emotional
distress.[14] The CCSD Defendants and Detective Klemp
move to dismiss under Federal Rule of Civil Procedure
12(b)(6), and each also filed a special motion to dismiss
under Nevada's anti-SLAPP statute.
Discussion
A.
Most of Lescinsky's claims are time-barred.
“A
claim may be dismissed under Rule 12(b)(6) on the ground that
it is barred by the applicable statute of limitations only
when ‘the running of the statute is apparent on the
face of the complaint.'”[15] “[A] complaint
cannot be dismissed unless it appears beyond doubt that the
plaintiff can prove no set of facts that would establish the
timeliness of the claim.”[16]
1.
Intrusion upon seclusion
Lescinsky's
intrusion-upon-seclusion claim rests on his allegation that
Detective Klemp violated his right to privacy when Klemp gave
the FBI his employment file on July 28, 2015.[17]Nevada law
provides a two-year statute of limitations in NRS 11.190(4)
for actions in tort.[18]Because Lescinsky did not file this
complaint until more than three years after the allegedly
tortious conduct, this claim is time-barred. In any event,
Lescinsky concedes that he cannot prevail on this claim
because the FBI subpoenaed his employment file, which
precludes him from proving any damages.[19] I dismiss
this claim.
2.
Intentional infliction of emotional distress
Lescinsky's intentional-infliction-of-emotional-distress
claim is based on two events: (1) his assignment to another
school based on Assistant Superintendent Malich's alleged
assertion that Lescinsky was “unfit to maintain his
assignment at Jeffrey Behavioral School” because of his
race;[20] and (2) that Detective Klemp continued
to investigate him and referred the case to the
FBI.[21] As above, the two-year statute of
limitations under NRS 11.190(4) applies. According to the
complaint, CCSDPD reassigned Lescinsky to another school on
July 24, 2015, [22] and Detective Klemp submitted the case
to the FBI some time prior to July 28, 2015.[23] Because
Lescinsky did not file this complaint until August 9, 2018,
this claim is also time-barred.
3.
Defamation
As the
foundation for his defamation claim, Lescinsky alleges that
defendants made two defamatory statements during the
investigation and at trial:
a. That the Plaintiff did, in fact, exercise excessive force
with relation to occurrence of May 21, 2015.
b. That the Plaintiff, because of skin color, was unfit to
maintain his assignment at Jefferey Behavioral
School.[24]
Nevada
law imposes a two-year statute of limitations on defamation
claims.[25] Lescinsky does not plead any facts to
show that either statement occurred during trial. Instead, he
contends that both occurred before the trial started on
August 8, 2016.[26] The administrative investigation began
on June 30, 2015, and closed after the trial on September 16,
2016.[27] He also alleges that Assistant
Superintendent Malich told the FBI that Lescinsky's
conduct was “excessive” during an interview on
February 12, 2016.[28] And his reassignment, which he asserts
stemmed from Malich's comments, occurred sometime before
July 24, 2015.[29] All of these allegedly defamatory
statements occurred at least two years before Lescinsky filed
his complaint.
Lescinsky
argues that the statute of limitations on this claim has not
run because he did not become “aware of the actual
damage [until] January 7, 2017 [, ] when it became clear he
would never be considered for any position as a police
officer outside of CCSDPD.”[30] “The general rule
concerning statutes of limitation is that a cause of action
accrues when the wrong occurs and a party sustains injuries
for which relief could be sought.”[31] There is an
exception to that rule-the “delayed discovery
rule”-that tolls the limitations period “until
the injured party discovers or reasonably should have
discovered facts supporting a cause of
action.”[32] But Lescinsky's argument for a
departure from this rule is inconsistent with the allegations
in his complaint where he asserts that his injury is based on
the investigation and his reassignment to another school in
2015.[33] Accordingly, I conclude that
Lescinsky's defamation claim is also time-barred.
And
even if this claim were timely, it must be dismissed because
the alleged defamatory statements are shielded by the
litigation privilege. A civilian's complaint triggering
an internal investigation of a police officer is absolutely
privileged because the investigation is considered a
quasi-judicial proceeding, [34] as are “communications
uttered or published in the course of judicial proceedings
[or] quasi-judicial hearings, complaints filed with an
internal affairs bureau against a police officer, and even
letters written in anticipation of
litigation.”[35] In Lewis v. Benson, the Nevada
Supreme Court held that a civilian's complaint alleging
misconduct by two police officers was absolutely privileged
because it prompted an internal affairs investigation, which
the Court deemed a quasi-judicial proceeding, and thus
immunized the civilian for civil liability in a defamation
claim by the police officers.[36] Lescinsky argues that
Lewis is inapposite because the police department
ultimately found the complaint to be unfounded, like CCSDPD
did here, but he alleges that Detective Klemp “doctored
the evidence” and his statements to the
FBI.[37] Lewis makes clear that both
statements are privileged as the statements concerned the
investigation and anticipated litigation-even though the
District Attorney declined to prosecute him.[38]
The
Nevada Supreme Court also made clear that whether Detective
Klemp or another defendant made the statements
“knowingly, willfully, and maliciously with the intent
to harm”[39]Lescinsky is irrelevant. The absolute
litigation privilege applies even when the statements are
made with malicious motive or “with knowledge of the
communications falsity, ” so long as the alleged
defamatory statements are made in litigation or in
anticipation of litigation and relate “to the subject
of the controversy.”[40] Because the investigation and
federal criminal case related to Lescinsky's use of force
during the incident, the statements are absolutely
privileged.
4.
Lescinsky's Section 1983 Claim
Lescinsky's
42 U.S.C. § 1983 claim and Monell arguments
stem from his reassignment to another school based on his
race.[41] Because § 1983 specifies no
limitations period, we borrow the forum state's residual
limitations period for personal injury actions.[42] Nevada's
residual statute of limitations for personal injury actions
is codified at NRS 11.190(4)(e), which provides a two-year
period for “an action to recover damages for injuries
to a person . . . caused by the wrongful act or neglect of
another.”[43] Lescinsky's § 1983 claims are
thus subject to a two-year statute of limitations. Because
Lescinsky alleges that he was reassigned on July 24, 2015,
[44]
but he did not file his complaint until more than three years
later on August 9, 2018, this claim is also time-barred.
B.
Lescinsky's racketeering claim lacks the requisite
specificity.
The
statute of limitations on a Nevada racketeering claim is
“5 years after the violation occurs or after the
injured person sustains the injury, whichever is
later.”[45] Lescinsky filed this complaint three
years after the incident giving rise to his investigation and
prosecution, so this claim is timely.
Defendants
argue that Lescinsky has not suffered a racketeering injury
and did not sufficiently plead the claim.[46] Nevada
Revised Statutes § 207.470 provides a civil right of
action for racketeering activity. “‘Racketeering
activity' means engaging in at least two crimes related
to racketeering that have the same or similar pattern,
intents, results, accomplices, victims or methods of
commission, or are otherwise interrelated by distinguishing
characteristics and are not isolated
incidents.”[47] “Crimes related to
racketeering” include, as relevant here, extortion,
perjury or subornation of perjury, and offering false
evidence.[48]
The
Nevada Supreme Court has held “that civil racketeering
claims must be pled with specificity”-which is the same
standard used for a criminal indictment or
information.[49] “A civil RICO pleading must, in
that portion of the pleading [that] describes the criminal
acts that the defendant is charged to have committed, contain
a sufficiently ‘plain, concise and definite'
statement of the essential facts such that it would provide a
person of ordinary understanding with notice of the
charges.”[5 ...