Evans v. Nye County Sheriff's Office
2:20-cv-01919
| D. Nev. | Jan 19, 2023Background
- Plaintiff Angela Evans, CEO of Valley Electric Association (VEA), was investigated in Feb 2019 for alleged embezzlement relating to VEA work done at a property Evans later purchased.
- NCSO Lieutenant David Boruchowitz relied on “street sources” (Kenneth Johnson, Joshua Slagowski), an interview of a lineman (Karl Kaucky), satellite photos, and VEA work orders to obtain warrants and to execute a warrantless arrest of Evans on Feb 26, 2019.
- Key disputed facts: whether the work was performed for Evans’s benefit, whether Evans was entrusted with VEA property or funds in April 2018, and whether there was probable cause as to the specific intent element of embezzlement.
- Plaintiff brought § 1983 Fourth Amendment false arrest and state-law false arrest claims against Boruchowitz and Monell claims against Nye County/NCSO; she voluntarily dismissed an unreasonable-search claim.
- The court denied summary judgment as to Boruchowitz (federal and state false arrest claims), granted summary judgment as to Nye County (Monell claims), and granted an unopposed motion to seal a sensitive VEA exhibit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Probable cause for § 1983 false arrest (embezzlement requiring specific intent) | Evans: investigation failed to establish entrustment or specific intent; material disputes exist | Boruchowitz: had reasonably trustworthy information (sources, work orders, lineman interview) to form probable cause | Disputed material facts as to entrustment and specific intent; summary judgment denied as to Boruchowitz |
| Qualified immunity (Boruchowitz) | Evans: disputed facts (ignored exculpatory evidence, possible personal motive) preclude immunity | Defs: probable cause existed; qualified immunity protects reasonable mistakes | Disputed factual record prevents resolving qualified immunity on summary judgment; immunity denied at this stage |
| Municipal liability (Monell) | Evans: NCSO ratified or tolerated unconstitutional arrest practices; Sheriff Wehrly knew/approved investigation/arrest | Defs: no pleaded or proved pattern, no final policymaker ratification of the warrantless arrest | No sufficient record evidence of ratification or municipal policy/pattern; Monell claims against Nye County dismissed |
| State-law false arrest / discretionary-function immunity | Evans: bad-faith conduct (personal motive) removes immunity; false arrest claim viable | Defs: arrest is discretionary policing act entitled to immunity | Reasonable juror could find bad faith; discretionary immunity unavailable for Boruchowitz on these facts; summary judgment denied |
| Motion to seal | N/A | Exhibit contains sensitive VEA staking/pricing information harming public safety if public | Motion to seal granted (compelling reason found) |
Key Cases Cited
- Monell v. Dep't of Soc. Servs., 436 U.S. 658 (U.S. 1978) (municipal liability standard)
- Gasho v. United States, 39 F.3d 1420 (9th Cir. 1994) (probable cause must cover specific intent when required by statute)
- Blankenhorn v. City of Orange, 485 F.3d 463 (9th Cir. 2007) (probable cause for warrantless arrest standard)
- Walsh v. State, 887 P.2d 1239 (Nev. 1994) (two mutually exclusive prongs of Nevada embezzlement statute)
- Batin v. State, 38 P.3d 880 (Nev. 2002) (entrustment/constructive possession element in embezzlement)
- Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172 (9th Cir. 2006) (compelling reasons required to seal dispositive-motion records)
- City of Canton v. Harris, 489 U.S. 378 (U.S. 1989) (failure-to-train deliberate indifference standard for municipal liability)
- Ashcroft v. al-Kidd, 563 U.S. 731 (U.S. 2011) (clearly established law requirement for qualified immunity)
- Saucier v. Katz, 533 U.S. 194 (U.S. 2001) (qualified-immunity framework)
- Reed v. Lieurance, 863 F.3d 1196 (9th Cir. 2017) (factual disputes on probable cause for specific-intent crimes are for the jury)