ORDER
Before the court is defendants the Clark County School District (“CCSD”), Filiber-to Arroyo (“Arroyo”), Brian Nebeker (“Nebeker”), Loren Johnson (“Johnson”), and Armando Quintanilla’s (“Quintanilla”) (collectively “moving defendants”) motion for reconsideration of the court’s January 10, 2014 order denying in-part and granting in-part their motion for summary judgment (Doc. # 254
I. Facts and Procedural History
This action arises from the tragic death of the Petersons’ daughter, Angela Peterson.
On November 28, 2009, non-party Rebecca Wamsley (“Wamsley”), a dispatcher for the CCSD Police Department (“department”), hosted a holiday party at her home and invited members of the department and their families. Defendant Tina Zuniga (“Zuniga”) attended the holiday party with her daughter and her daughter’s eighteen (18) year old boyfriend, defendant Kevin Miranda (“Miranda”). Despite being underage, Miranda drank alcohol provided at the party. Miranda then left the party intoxicated, ran a red light, and crashed his parents’ truck into the vehicle driven by Angela Peterson, killing her. Miranda subsequently pled guilty to a category B felony, and is currently serving an eighty (80) month prison sentence.
On October 20, 2011, the Petersons filed a complaint for wrongful death against all defendants. Doc. # 1, Exhibit 1. On June 5, 2013, the Petersons filed a second amended complaint against defendants alleging thirteen causes of action: (1) negligence against all defendants; (2) negligence against Eric Miranda and Chary Alvarado Miranda (“Miranda’s parents”); (3) violation of NRS § 41.440 against Miranda’s parents; (4) violation of NRS § 41.1305 against defendants Zuniga, Cyn
In response, moving defendants filed a motion for summary judgment on several of the Petersons’ claims. Doc. # 202. On January 10, 2014, the court granted in-part and denied in-part moving defendants’ motion. Doc. # 254,
II. Legal Standard
A motion for reconsideration is an “extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop,
III. Discussion
In their motion for reconsideration, moving defendants raise challenges to the court’s January order. In particular, moving defendants argue that reconsideration is warranted because: (1) the court misapplied the legal standard for police officers acting under color of State law as to defendant Nebeker; (2) the court erred in allowing the Petersons’ post-accident coverup claim to survive summary judgment despite dismissing the Petersons’ similar denial of access to the courts claim; (3) the court erred in allowing the Monell claim against defendant CCSD to survive summary judgment; (4) the court failed to address whether moving defendants were entitled to qualified immunity as to all Section 1983 claims;
A. Section 1983 Challenges
Section 1983 provides a remedy to individuals whose constitutional rights have been violated by a person acting under color of state law. See Burke v. County of Alameda,
In their second amended complaint, the Petersons alleged four separate claims under Section 1983: (1) constitutional violations relating to conduct by CCSD employees at the holiday party; (2) constitutional violations relating to a cover-up by CCSD employees after the holiday party; (3) a denial of access to the courts claim; and (4) liability against CCSD under Monell v. Dept. of Soc. Serv.,
1. Defendant Nebeker
In the court’s January order, the court found that defendant Nebeker was not entitled to summary judgment on the Peter-sons’ Section 1983 claim for conduct that occurred at the holiday party because Ne-beker, a police sergeant with the department, “failed to act or attempt to stop the underage drinking.” Doc. # 254,
In their motion for reconsideration, moving defendants argue that the court erred in denying Nebeker summary judgment because he did not take any affirmative action or engage in any conduct at the party to support a finding that he acted under color of State law.
Generally, to establish that a person was “acting under the color of law,” a plaintiff must show that: (1) defendant’s conduct was performed while acting, purporting to act, or pretending to act in the performance of official duties; (2) defendant’s conduct must have had the purpose
Here, reviewing the evidence submitted in support of summary judgment, the court finds that it erred in denying defendant Nebeker summary judgment on this claim. The court finds that there is no evidence that Nebeker participated in creating the dangerous situation of underage drinking and driving that occurred at the Wamsley party,- nor did he act with any deliberate indifference to that obvious danger. The only evidence concerning Nebeker’s actions at the holiday party— the testimony of non-party Peggy Higgins (“Higgins”)—establishes that Nebeker left the holiday party early, before Miranda got into the vehicle and drove away. Thus, he was not present to either create or ignore the danger of Miranda driving intoxicated. Therefore, the court finds that reconsideration of the court’s January order on this issue is warranted and the court shall grant defendant Nebeker summary judgment on this claim.
2. Post Holiday Party Cover-up
In the prior order, the court found that moving defendants were not entitled to summary judgment on the Petersons’ Section 1983 claim for conduct that occurred after the holiday party because there were “disputed issues of material fact relating to moving defendants’ conduct in the alleged cover-up.” Doc. # 254,
The court has reviewed the documents and pleadings on file in this matter and finds that the Petersons have established that as a result of defendants’ cover-up they were deprived of several substantial due process rights including protection from the arbitrary exercise of governmental power and equal treatment by government officials. As such, the court’s January order appropriately allowed this separate Section 1983 claim to proceed despite dismissing the Petersons’ denial of access to the courts Section 1983 claim. Therefore, the court shall deny moving defendants’ motion as to this claim.
In order to establish municipal liability under Section 1983, a plaintiff must show: (1) an employee violated the plaintiffs constitutional rights pursuant to an official policy or informal practice of the municipal entity; (2) that the violator had final policy-making authority, and thus the challenged action itself constituted an act of official governmental policy; or (3) a person with final policy-making authority ratified the unconstitutional behavior. Gillette v. Delmore,
In the court’s underlying order, the court found that because the Petersons had sufficiently established a constitutional violation under.Section 1983, and because that claim “necessarily involve[d] conduct by employees who allegedly had final policy-making authority ... the Petersons [had] established a claim for Monell liability against CCSD sufficient to survive summary judgment.” Doc. # 254,
In their motion, moving defendants argue that there is no evidence in the record that CCSD employees ratified the underlying conduct supporting the Petersons’ other Section 1983 claims. However, viewing the evidence in the light most favorable to the Petersons as the non-moving party, the court finds that there is sufficient evidence that final policy makers within the department, particularly defendant Arroyo, the chief of the department, encouraged and supported defendants’ actions in attempting to cover-up employee conduct at the holiday party. For example, he gave specific orders that were carried out throughout the department including the deletion of e-mails about the holiday party and he had the final say over the decision declining to initiate an investigation into employee activities at the holiday party. Therefore, the court finds that there is sufficient evidence of final policy-maker involvement to allow the Peterson’s Monell claim to proceed. Accordingly, the court shall deny moving defendants motion as to this claim.
B. Civil Conspiracy Claim
To establish a claim for civil conspiracy, a plaintiff must establish: (1) the commission of an underlying tort; and (2) an agreement between the defendants to commit that tort. GES, Inc. v. Corbitt,
In their motion for reconsideration, moving defendants argue that reconsideration is warranted because neither identified tort can support a civil conspiracy claim. First, moving defendants argue that in Nevada there is no tort liability for destruction of evidence. The court has reviewed this issue and agrees with moving defendants that there is no independent tort liability for destruction of evidence. See Timber Tech Engineered Building Products v. The Home Insurance Company,
Second, moving defendants argue that an intentional infliction of emotional
C. Remaining State Law Claims
1. Intentional Infliction of Emotional Distress
To establish a claim for intentional infliction of emotional distress, a plaintiff must show: (1) extreme or outrageous conduct by defendant; and (2) that plaintiff suffered severe emotional distress. Beckioith,
Moving defendants argue that the evidence in this action is insufficient to establish that they engaged in any extreme or outrageous conduct simply by failing to launch an internal investigation into department employees and for destroying evidence. See Doc. # 257. However, “whether conduct is extreme or outrageous is a question for the jury.” Posadas v. City of Reno,
2. Negligent Infliction of Emotional Distress
In the January order, the court held that the Petersons could seek a negligent infliction of emotional distress claim on behalf of Angela Peterson as the direct victim of moving defendants’ alleged negligence. See Doc. #254,
In Nevada, a direct victim of a defendant’s negligent acts can recover for emotional distress caused by the defendant’s negligence. Shoen v. Amerco, Inc.,
3 Negligent Hiring, Retention, and Supervision
To succeed on a claim for negligent hiring, retention, and supervision of employees, a plaintiff must establish that: (1) defendant owed a duty of care to the plaintiff; (2) defendant breached that duty by hiring, retaining, and/or supervising an employee even though defendant knew, or should have known, of the employee’s dangerous propensities; (3) the breach was the cause of plaintiffs injuries; and (4) damages. Hall v. SSF, Inc.,
In their prior motion for summary judgment, moving defendants argued that defendant CCSD was entitled to discretionary act immunity pursuant to NRS § 41.032(2). See Doc. # 202. NRS § 41.032(2) provides complete immunity from claims based on a political subdivision’s exercise or performance of a discretionary function or duty. However, in the January order, the court found that “discretionary immunity does not extend beyond the hiring of an employee to that employee’s retention and supervision,” relying on Doe v. Estes,
Moving defendants now argue that the court should reconsider its order because the Nevada Supreme Court has recently extended discretionary immunity to cover both the supervision and retention of an employee. See Doc. # 257. The court agrees. In University of Nevada School of Medicine v. The Eighth Judicial Dist. Ct, — Nev. -, Case no. 61058, Doc. #12-33653 (Oct. 23, 2012),
4. Ratification & Respondeat Superior
A principal may become liable for the tortious acts of its agent, if the principal, with full knowledge of the tortious conduct, ratifies that conduct, and if the conduct was “purportedly done on the principal’s behalf.” Harrah v. Specialty Shops,
In the prior order, the court denied moving defendants summary judgment because the court found that “the Petersons have established that moving CCSD defendants, acting with the purpose of protecting CCSD from liability, covered up the' actions of CCSD employees and attempted to prevent discovery of employee conduct at the holiday party. These actions were allegedly taken on CCSD’s behalf in order to protect CCSD and its employees from possible liability.” Doc. # 254,
5. Punitive Damages
In the January order, the court allowed the punitive damages claims against individual employee defendants to proceed because there are disputed issues of fact concerning the individual defendants’ actions and conduct. Moving defendants now argue that punitive damages should be foreclosed because defendants are officers of a political subdivision and are protected under NRS § 41.035. NRS § 41.035 provides that an award of damages against a political subdivision of the state of Nevada, like CCSD, or officers or employees of a political subdivision, may not include an award of punitive damages. NRS § 41.035(1). However, as the issue of whether the individual defendants’ conduct was within the scope of their employment is heavily disputed by the parties, the court shall not foreclose the possibility of punitive damages at this time.
IT IS THEREFORE ORDERED that moving defendants’ motion for reconsideration of the court’s January 10, 2014 order (Doc. #257) is GRANTED in-part and DENIED in-part in accordance with this order.
IT IS FURTHER ORDERED that summary judgment is entered in favor of defendant Brian Nebeker and against plaintiffs Linda and Francis Peterson on plaintiffs fifth cause of action for constitutional violations under 42 U.S.C. § 1983 as it relates to conduct that occurred during the holiday party.
IT IS FURTHER ORDERED that summary judgment is entered in favor of defendants Clark County School District, Filiberto Arroyo, Brian Nebeker, Loren Johnson, and Armando Quintanilla and against plaintiffs Linda and Francis Peterson on plaintiffs’ seventh cause of action for negligent infliction of emotional distress.
IT IS FURTHER ORDERED that the clerk of court shall enter judgment in favor of defendant Clark County School District and against plaintiffs Linda and Francis Peterson on plaintiffs’ eighth cause of action for negligent hiring, retention, and supervision.
IT IS SO ORDERED.
Notes
. Refers to the court's docket entry number.
. The court notes that at no point in their initial motion for summary judgment did moving defendants raise the issue of qualified immunity to this court. A motion for reconsideration is not an appropriate avenue to raise new arguments not properly raised in the underlying motion. See Fed.R.Civ.P. 59(e). Further, defendants have recently filed a new motion for summary judgment solely on the grounds of qualified immunity. See Doc. # 267. Therefore, the court shall not consider this argument at this time.
. Moving defendants also did not properly raise any challenge to the Petersons’ state law claims based on the public duty doctrine in their prior motion for summary judgment. Therefore, the court shall likewise not consider this argument in-this order.
. The court recognizes that moving defendants are dissatisfied and disagree with the court’s prior order. However, the court made no unsupported or improper final factual findings in the January order. All factual statements made by the court were based on the appropriate and limiting summary judgment standard of viewing the evidence in the light most favorable to the Petersons as the non-moving party. All evidence before the court was considered. It is clear that there are numerous factual disputes between the parties.