Opposition Brief — Delew v. Wagner
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Supreme Court, U.S.
FILED
$6 08
No. 98-276 °/
In The
Supreme Court of the United. Sfatés
October Term, 1998
©
MICHAEL C. DELEW; MICHAEL C. DELEW as
Special Administrator of the Estate of Erin Rae
DeLew; H. ROY MAYBERRY; and VICKIE MAYBERRY,
Petitioners,
V.
JANET KATHLEEN WAGNER; LAS VEGAS
METROPOLITAN POLICE DEPARTMENT; STATE OF
NEVADA, EX REL.; NEVADA HIGHWAY PATROL;
LIEUTENANT EDWARD JENSEN; SERGEANT
RICHARD WOMACK; SERGEANT CURTIS ALBERT;
SERGEANT THOMAS HARMON; DETECTIVE
RICHARD HART; DETECTIVE WILLIAM JOHNSON;
OFFICER WILLIAM SMITH; OFFICER KEITH
BOWERS; OFFICER DAVID WAGNER; OFFICER GREG
GOEN; SERGEANT WILLIAM ADAMSON; SERGEANT
HARVEY WEATHERFORD; TROOPER JOSEPH A.
SMITH; TROOPER GARTH GARDNER; TROOPER
JOSEPH WYNGARD; AND TROOPER
JAMES BRANNUM,
Respondents.
t
On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Ninth Circuit
+
RESPONDENT LVMPD’S BRIEF IN OPPOSITION
TO PETITION FOR WRIT OF CERTIORARI
“
Peter M. ANGULO, Esq.
301 E. Clark Ave., #1000
Las Vegas, Nevada 89101
(702) 384-4012
Counsel for Respondents
Las Vegas Metropolitan Police Department,
Lieutenant Edward Jensen, Sergeant Richard
Womack, Sergeant Curtis Albert, Sergeant
Thomas Harmon, Detective Richard Hart,
Detective William Johnson, Officer William
Smith, Officer Keith Bowers, Officer David
Wagner, and Officer Greg Goen
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831 >
\\
QUESTION PRESENTED FOR REVIEW
WHETHER THE NINTH CIRCUIT CORRECTLY
DECIDED, IN A CASE WHERE THE CONSTITU-
TIONAL VIOLATION ALLEGEDLY DEALS WITH
DELIBERATE POLICE “COVER-UP”, THE CAUSE
OF ACTION ARISING FROM SUCH EVENTS DOES
NOT BECOME RIPE UNTIL IT CAN BE SHOWN
THE ACTIONS RESULTED IN MEANINGFUL
DENIAL OF ACCESS TO THE COURTS - SUCH AS
RENDERING STATE COURT REMEDIES INEFFEC-
TIVE.
PARTIES TO THE PROCEEDING
Respondents do not disagree with the characteriza-
tion of the parties to this proceeding identified in the
Petition for Writ of Certiorari.'! For the purposes of this
Opposing Brief, Michael C. Delew, Vickie Mayberry and
H. Roy Mayberry will be monickered “DELEWS”.
Respondents Las Vegas Metropolitan Police Depart-
ment; Lieutenant Edward Jensen; Sergeant Richard
Womack; Sergeant Curtis Albert; Sergeant Thomas Har-
mon; Detective Richard Hart; Detective William Johnson;
Officer William Smith; Officer Keith Bowers; Officer
David Wagner; and Officer Greg Goen, will hereinafter be
collectively referred to as “LVMPD”.
Respondent Janet Kathleen Wagner will hereinafter
be referred to as “WAGNER”. Respondents State of Nev-
ada, ex rel.; Nevada Highway Patrol; Sergeant William
Adamson; Sergeant Harvey Weatherford; Trooper Joseph
A. Smith; Trooper Garth Gardner; Trooper Joseph
Wyngard; and Trooper James Brannum will hereinafter be
collectively referred to as “NHP”.
' Respondent would bring to this Court’s attention that
DELEWS are also Cross-Respondents in this action by way of
the Conditional Cross-Petition for Writ of Certiorari filed by
the LVMPD on September 14, 1998.
TABLE OF CONTENTS
Page
QUESTION PRESENTED FOR REVIEW ............ i
PARTIES TO THE PROCEEDING .................. ii
NS GS Wilh CBR a db did's bie 5 -00ie.caa ve 1
CONSTITUTIONAL AND STATUTORY PROVI-
I 1
en oS a! 2
mT De) 2
8g. 5
he es iss kena beaes oésnedis 8
I. NO LITIGATION CAN BE BROUGHT BEFORE
RE ee 9
Il. A “COVER-UP” CONSTITUTIONAL VIOLA-
TION CANNOT TAKE PLACE UNTIL THE
UNDERLYING STATE LAW CLAIM (IF ONE IS
PO UTED is ov kiescenscesuscisccsess 13
Ill. THE MAJORITY OF CIRCUITS CORRECTLY
AGREE WITH THE NINTH CIRCUIT......... 15
IV. DELEWS’ CITED CASES ARE INAPPOSITE... 19
OU a ina ncaa s¥acs'ssdescss 20
iv
TABLE OF AUTHORITIES
Page
Abbott Laboratories v. Gardner, 387 U.S. 136 (1967) .... 10
Allen v. Wright, 468 U.S. 737 (1984) ................. li
Alper v. Stillings, 80 Nev. 84, 389 P.2d 239 (1964) .... 18
American-Arab Anti-Discrimination Committee v.
Thornburgh, 970 F.2d 501 (9th Cir. ss vanstoaur 11
Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir.
SS 0 0b 00h. sv cn oven sedwhe Rib abedneno. iN 9, 19
Board of Regents v. Tomanio, 446 U.S. 478 (1980)...... 10
Bounds v. Smith, 430 U.S. 817 MUI k € 440 euGcs ken ad 15
Butler v. Dowd, 979 F.2d 661 (8th Cir. 1992), cert.
denied, 113 S. Ct. 2395 SS eae 17
Carey v. Piphus, 435 U.S. 247 (1978) ................. 12
Chambers v. Baltimore & Ohio R.R. Co., 207 U.S. 142
ca CE oe EET TTI )
Dooley v. Reiss, 736 F.2d 1392 (9th Cir.), cert. denied,
aah... . arcane ce seer 14
Duke Power Co. v. Carolina Environmental Study
Group, Inc., 438 U.S. 59 (1978) .................... 11
Felder v. Casey, 487 U.S. 131 (1988).................. 10
Foster v. City of Lake Jackson, 28 F.3d 425 (5th Cir.
i EE Oe IIE IE 15
Hawkins v. Joshua Barney's Lessee, 5 Pet. (30 U.S.)
rn se ee aR 10
Heck v. Humphrey, 512 U.S. 477 NR Gicttadienes 12
0 Aa aig
a
Vv
TABLE OF AUTHORITIES - Continued
Hudson v. Palmer, 468 U.S. 517 (1984) ............
Karim-Panahi v. Los Angeles Police Dept., 839 F.2d
os ocdhe spcoadie tha, OYE eer ee
Kelly Broadcasting Co., Inc. v. Sovereign Broadcast,
Inc., 96 Nev. 188, 606 P.2d 1089 (1980) .........
Landrigan v. City of Warwick, 628 F.2d 736 (1st Cir.
cn EEC PETTITT LS SE he en
Lewis v. Casey, 116 S. Ct. 2174 (1996).............
McCabe v. Arave, 827 F.2d 634 (9th Cir. 1987).....
McKenzie v. City of Whitehall, 112 F.3d 313 (8th Cir.
tn rns WedeeE Wns ciwe dh 64s 15s 04 bile bs ces
Memphis Community School District v. Stachura, 477
ee IS CNG ibe bie es <hraca tee sccaeets
Myers v. Scott County, 868 F.2d 1017 (9th Cir. 1989) ....
O'Shea v. Littleton, 414 U.S. 488 (1974)............
Portman v. County of Santa Clara, 995 F.2d 989 (9th
8 Ree re eer ee
ee eee
Ryland v. Shapiro, 708 F.2d 967 (5th Cir. 1983) ....
Semenza v. Nevada Medical Liability Ins. Co., 104
Nev. 666, 765 P.2d 164 (1968)..................
Spencer v. Kemna, __ U.S. __, 118 S. Ct. 978 (1998) ....
Swekel v. City of River Rouge, 119 F.3d 1259 (6th Cir.
1997), cert. denied, 118 S. Ct. 690 (1998) ........
vi
TABLE OF AUTHORITIES - Continued
Page
Thomas v. Union Carbide Agricultural Prod. Co., 473
ee I sos sipnnaducnseessee Teen cs 11
Thompson v. Boggs, 33 F.3d at 847 (7th Cir. 1994),
cert. denied, 514 U.S. 1063 Se ree 16, 19
Vasquez v. Hernandez, 60 F.3d 325 (7th Cir. 1995)... .. 16
Waller v. Butkovich, 584 F. Supp. 909 (M.D.N.C.
cies pe ETL ied te Me NER, a 16
Warth v. Selden, 422 U.S. 490 (1975) ................. 11
Webster v. City of Houston, 689 F.2d 1220 (Sth Cir.
Wn Hau oe she 0 ceed Mb Meg eT CRORE tao. ics. 9
Williamson County Regional Planning Comm'n v.
Hamilton Bank, 473 US. 172 a A Uy 11
RuLEs AND STATUTES
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Pe WY BF I ssc ee 0sncks cheese see passim
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JURISDICTION
On April 4, 1997, the Honorable Phillip M. Pro of the
United States District Court for the District of Nevada
entered and served an Order which dismissed Peti-
tioners’ litigation in its entirety.?
Thereafter, this matter was timely brought before the
Ninth Circuit Court of Appeals and was subjected to its
briefing schedule. After considering the briefs and hear-
ing oral argument on the matter, the Ninth Circuit issued
its opinion — reversing the decision of Judge Pro. See
Petitioners’ Appendix beginning at p. 1a. The Opinion did
not, however, reach the merits of the case. Instead, it
dismissed the litigation without prejudice — believing the
federal claims were unripe until the pending State court
litigation had concluded.
That Order was issued on May 11, 1998. Petitioners
invoke the jurisdiction of this Court under 28 U.S.C.
§ 1254(1). LVMPD concedes jurisdiction is found pur-
~ suant to Supreme Court Rule 13(1) and (3).
¢
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
LVMPD concedes Petitioners’ Complaint alleged vio-
lations of the constitutional provisions identified in the
Petition for Writ of Certiorari.
*
2 A complete copy of this Order is found in Petitioners’
Appendix beginning at page 10a.
2
STATEMENT OF THE CASE
A. PROCEDURAL HISTORY
On November 10, 1994, Michael Delew filed State
Court litigation against WAGNER in the Eighth Judicial
District Court in Clark County, Nevada. That litigation
averred WAGNER had negligently operated her vehicle
while under the influence of alcohol in such a manner as
to cause the death of Erin Rae Delew. The Complaint was
amended to include Petitioners H. Roy Mayberry and
Vickie Mayberry as parties-Plaintiff. The causes of action
and claims for relief remained the same.
After prodigious discovery had been conducted, in
the State Court litigation, on September 18, 1996 on the
eve of trial, Petitioners attempted to amend the Com-
plaint —- broadening its claim for relief from the wrongful
death action to include civil rights claims against LVMPD
and NHP. In addition, WAGNER was alleged to have
been involved in these civil rights violations. WAGNER
opposed expanding the litigation at that late date.
On September 24, 1996, WAGNER and DELEWS
appeared before the State Court judge to whom the case
was assigned. The Judge determined, since DELEWS had
not filed the litigation against all of the proposed defen-
dants at the outset (or even as discovery progressed), to
bring in new claims when the litigation was on the eve of
trial would be unduly prejudicial. Immediately thereafter,
DELEWS filed a second Complaint in the State Court
containing the exact same Defendants and allegations but
divesting itself of the state wrongful death claims. Upon
being served with the Complaint, LVMPD removed the
matter to the United States District Court for the District
of Nevada on January 23, 1997. WAGNER’s initial appear-
ance in the federal litigation was in the form of a Motion
to Dismiss filed on February 10, 1997.3 Her Motion
argued no 42 U.S.C. § 1983 cause of actior could exist due
to the fact a constitutional right to police investigations
did not exist under extant law. She further argued there
was no evidence for a conspiracy and that Petitioners
were attempting to wrongfully split their cause of action.
The Honorable Judge Phillip M. Pro issued an Order
on April 4, 1997 addressing the Motion to Dismiss and
dismissing the litigation in its entirety.* Noting the action
was commenced on September 26, 1996, Judge Pro accu-
rately described the action as one based on a fatal acci-
dent occurring September 27, 1994 wherein Ms. Delew
was struck while riding her bicycle by a vehicle driven by
WAGNER. He heid DELEWS were not allowed to split
the causes of action by bringing a state wrongful death
action and a separate 42 U.S.C. § 1983 action on the facts
alleged in the case. The accident, alone, failed to provide
a basis for lawsuit under 42 U.S.C. § 1983 against WAG-
NER as a private citizen. To the extent the litigation
attempted to bring in NHP and LVMPD as conspirators
with WAGNER to violate the constitutional rights of the
decedent, he asserted the claim was defective because
there was no allegation of evidence indicating the actions
of the alleged conspirators infringed upon any cogniza-
ble, protected right of Petitioners. Accordingly, the litiga-
tion was dismissed in its entirety.
3 Two separate Answers were filed on behalf of LVMPD
and NHP.
4 This Order is attached to the Petitioners’ Appendix
beginning at p. 10a.
' wane |
On April 21, 1997, this matter was appealed to the
Ninth Circuit Court of Appeals. After briefing and oral
argument, the Ninth Circuit issued its Order on May 11,
1998.° In that Order, the Ninth Circuit believed a poten-
tial constitutional violation for interference with Peti-
tioners’ meaningful access to the courts could arise from
a simple automobile accident.
Under the procedural posture of this case, however,
the Ninth Circuit properly held that, assuming a claim for
unconstitutional cover-up investigation can be made,
such a cause of action is not ripe until a party has been
denied “meaningful access” to the state court. Since that
issue has yet to fully unfold, it is simply premature to
bring litigation which challenges that the alleged cover-
up investigation impaired their access to the Court. Obvi-
ously, if Petitioners are successful at the State Court level,
then — despite any efforts to allegedly cover-up any
wrongful conduct — no constitutional rights would have
been violated. There is, therefore, no reason for this Court
to act to destroy the Ninth Circuit’s decision in this
specific regard.®
° The complete text of this opinion is found at Petitioners’
Appendix beginning at p. la.
® As the Court will notice, however, LVMPD disagree with
the validity of the Order itself so far as it implicates a
constitutional cover-up violation could have taken place. That
issue is more fully developed in the Conditional Cross-Petition
for Writ of Certiorari which LVMPD filed with this Court on
September 14, 1998.
Oe ne ete, me eae
a
oe kones
B. STATEMENT OF FACTS
Setting aside, for the moment, the unsupported his-
trionics contained in DELEWS’ factual statement, it is
respectfully submitted there are only a few sources to
which this Honorable Court may go in determining the
basal facts of the litigation. They are DELEWS’ Complaint
which was ultimately dismissed by Judge Pro, and the
arguments and exhibits found in WAGNER’s Motion to
Dismiss (and its resultant progeny). Reviewing those doc-
uments reveals a “factual” scenario for this Court to use
as the canvas upon which its legal decisions may be
properly based.
On December 27, 1994, at approximately 7:15 p.m.,
Erin Rae Delew was riding her bicycle in the vicinity of
West Lake Mead Boulevard and Ridgemore Street in Las
Vegas, Nevada. LVMPD Respondents’ Supplemental Appen-
dix (“SA”) 5 at J 13. The Complaint asserts WAGNER was
also operating a vehicle in the area and was, at that time,
operating the vehicle at an excessive speed while under
the influence of alcohol. Id. at JY 16-17. WAGNER is
alleged to have caused her vehicle to collide with the
bicycle — causing Erin Rae Delew to be projected approxi-
mately 60 feet from the point of impact and ultimately
causing her death. Id. at { 15.”
7 The independent statement by Susie Olsen indicated she
saw a woman on a dark bike without strobe or lights swerving
quite a bit because she was attempting to negotiate turning
across the street and had a bag of groceries she was carrying. SA
37-39. Ms. Delew apparently also had a headset on. Id. Ms. Olsen
believed WAGNER was unable to see the bicyclist because it
was too dark, the road was curving, and trees blocked
6
At the time of the accident, Lt. Colonel Robert A.
McNeese was in the area and ran to the scene. SA 23-25.
Upon arriving at the scene, he immediately went to the
victim and was unable to find a pulse, identify breathing,
or hear a heart beat. SA 33-34. At the Same time - before
the police and ambulance arrived - a doctor arrived at
the scene and confirmed Ms. Delew was dead. SA 35. A
patrolman who arrived also felt for a pulse and thought
she was dead. SA 35-36. Before any other Police
appeared, an ambulance arrived and the paramedics
therein verified Ms. Delew was dead. SA 36-37.
After this, additional LVMPD police officers arrived:
NHP was contacted and arrived to conduct the investiga-
tion. Petitioners claim the subsequent investigation of the
accident, including the procurement of an independent
witness statement by one Susie S. Olsen (SA 37-39) was
designed to “cover up” wrongful activities of WAGNER;
and, by so doing, deprived Petitioners of access to the
Courts; the right to petition the government for redress of
grievances under the First Amendment; the right to pros-
ecute wrongful deaths without impairment or interfer-
ence; and the right to have a fair and impartial
investigation of a death. See SA 11-13 at ¥ 29(a)-(h).
Sometime after the accident, WAGNER called her
husband. SA 41-42. When her husband arrived many
minutes later, she was unclear whether other officers or
even paramedics had arrived. SA 42, 44.
her vision. Id. Apparently, the bicycle swerved in front of
WAGNER’s vehicle immediately before the impact.
WAGNER testified no officer attempted to separate
her from the scene of the collision or to segregate her
from other people at the scene. SA 44-45. Approximately
an hour or so after the accident, she was asked to give a
statement. SA 45. She was given a field sobriety test
(HGN). SA 69-70. The result of that test, however, was (in
the words of NHP Officer Smith) negative “as far as the
six clues or points that you look for... . ” Id. During this
time, WAGNER needed to use the restroom and was
driven home so she could do that. SA 49-50. As a result of
the exculpatory statement of Ms. Olsen, the negative
results of the field sobriety test, and NHP’s investigation,
WAGNER was not cited for the death of Ms. Delew.
The remainder of the “factual allegations” and asser-
tions in the Petition for Writ of Certiorari may be plainly
seen by this Court - upon review of the record - to be
little more than gross speculation and conjecture. Cer-
tainly there was nothing in the Complaint nor in the
evidentiary record before Judge Pro which supported the
lurid and psycho-historical “factual” reconstruction
DELEWS portray. This is simply an accident involving
WAGNER and Ms. Delew. There is nothing supporting
the fraudulent assertions that, somehow, NHP or LVMPD
was involved in any cover-up.
Moreover, there was simply no evidence adduced
that state court could not vindicate Petitioners’ alleged
interest in punishing WAGNER (assuming their view of
the facts is true). In the pending state court litigation
DELEWS are allowed to cross-examine the investigating
officers, bring up any inconsistencies they believe existed
in the investigation, and set forth all of the evidence in
8
their possession that WAGNER had, in fact, been drink-
ing that evening and was the primary cause of the fatal
accident. They have not been denied the opportunity of
filing a suit, conducting discovery, or being able to pre-
sent evidence in this regard. As it presently stands, Peti-
tioners can prevail in their State court litigation
(assuming their contentions about WAGNER’s culpability
are correct). By the same token, a jury — having consid-
ered all of the relevant evidence — may well conclude
WAGNER did nothing wrong.
The Circuit's primary concern was that before the
litigation could be ripe, Petitioners had to show they
were somehow denied meaningful access to the courts or
a fair opportunity to have their grievances redressed in
State court — based solely upon the actions of LVMPD and
NHP in conducting their subsequent investigation into
the accident itself. In this regard, their decision was con-
sistent with the posture assumed by this Court on other
issues and the majority of other Circuits deciding this
very matter.
e¢——
LEGAL ARGUMENT
Initially, LYVMPD Strongly disagrees with the Ninth
Circuit’s decision that, under the peculiar facts of this
case, DELEWS stated a “cognizable” claim under § 1983.
In fact, as Petitioners’ own cited cases specifically indi-
cate, cover-up conspiracies only apply in the investiga-
tion of a wrong perpetrated by a co-employee under color
of state law or under a wrongful investigation of an
injury perpetrated bya co-employee acting under color of
state law. See Bell v. City of Milwaukee, 746 F.2d 1205,
1261-62 (7th Cir. 1984); see Webster v. City of Houston, 689
F.2d 1220, 1239 (Sth Cir. 1982).8 Assuming arguendo this
Court believes a potential § 1983 violation could exist
under the peculiar facts of this case, it is clear the deci-
sion of the Ninth Circuit was absolutely correct.
I. NO LITIGATION CAN BE BROUGHT BEFORE IT
IS RIPE
This Court has held, for well over ninety (90) years,
that the right of access to the courts is a fundamental
right protected by the Constitution of the United States.
See Chambers v. Baltimore & Ohio R.R. Co., 207 U.S. 142, 148
(1907). While it is true 42 U.S.C. § 1983 provides no
condition precedent to pursuing cognizable claims and is
broadly construed to provide a remedy against all forms
of official violation of federally protected rights, it is not
accurate to state that any claim which could potentially
fall under the auspices of 42 U.S.C. § 1983 can be brought
at any time a plaintiff desires.
DELEWS argue the absence of “timing” language in
42 US.C. § 1983 somehow renders the decision ineffec-
tual. This analysis - albeit simplistic —- grossly fails to
understand the core requirements necessary for any cause
of action (under 42 U.S.C. § 1983 or otherwise). Indeed,
were Petitioners’ argument to be carried to its logical
conclusion, statutes of limitations would have no effect
8 This contention, however, has been addressed with the
Conditional Cross-Petition which is on file with this Honorable
Court and will not be examined in depth here.
«oil
10
on 42 U.S.C. § 1983 causes of action because the statute
itself contains no such language regarding same. Yet, it is
an undeniable fact that statutes of limitation have long
been respected as fundamental to a well-ordered judicial
system. Board of Regents v. Tomanio, 446 U.S. 478 (1980);
Hawkins v. Joshua Barney’s Lessee, 5 Pet. (30 U.S.) 457, 466
(1831). In fact, this court specifically noted — in the case of
42 U.S.C. § 1983 - even though because Congress did not
state a limitations period existed, its existence was always
implied. Felder v, Casey, 487 U.S. 131 (1988).
Just as a statute of limitations is a crucial element of a
well-ordered judicial system, so likewise the concept of
“ripeness” underlies the ability to bring forth any claim.
This concept is designed to ensure, at the time the judici-
ary has the case under consideration, the required ele-
ments necessary to establish both the existence of the
constitutional violation and the presence of damages are
extant. This Court has Specifically noted the ripeness
doctrine is drawn from Article III limitations on judicial
power and from prudential reasons for refusing to exer-
cise jurisdiction. Reno v. Catholic Social Services, Inc., 509
U.S. 43, 57 n. 18 (1993).
Ripeness requires the court to evaluate both the fit-
ness of the issues for judicial decision and the hardship to
Laboratories v, Gardner, 387 U.S. 136, 149 (1967). A claim is
not ripe for adjudication if it rests upon “contingent
future events that may not occur as anticipated, or indeed
11
may not occur at all.” Thomas v. Union Carbide Agricultural
Prod. Co., 473 U.S. 568, 581 (1985).9
For a ripe “case or controversy” to exist, “[a] plaintiff
must allege personal injury fairly traceable to the defen-
dant’s allegedly unlawful conduct and likely to be
redressed by the requested relief.” Allen v. Wright, 468
U.S. 737, 751 (1984). The requisite injury needs to be
“distinct and palpable.” Warth v. Selden, 422 U.S. 490, 501
(1975). It is insufficient to allege an abstract injury. O'Shea
v. Littleton, 414 U.S. 488, 493-94 (1974).10
“Ripeness is peculiarly a question of timing.” Ameri-
can-Arab Anti-Discrimination Committee v. Thornburgh, 970
F.2d 501, 510 (9th Cir. 1991). The inquiry as to ripeness of
a case for federal court action contains both constitutional
and prudential components. Portman v. County of Santa
* For example, in the context of a takings claim, such a
claim is not ripe for review until the litigant has used the
administrative procedures available and been denied just
compensation. See Williamson County Regional Planning Comm'n
v. Hamilton Bank, 473 U.S. 172, 195 (1985); McKenzie v. City of
Whitehall, 112 F.3d 313, 317 (8th Cir. 1997). “While there is no
requirement that administrative remedies be exhausted in cases
brought under 42 U.S.C. § 1983 .. . the claim must be ripe, and
not moot, to be reviewed properly.” McCabe v. Arave, 827 F.2d
634, 639 (9th Cir. 1987).
10 In many ways, the ripeness doctrine is related to the
“standing” doctrine. It requires the plaintiff to demonstrate that
(1) it will sustain injury from the challenged action, (2) the
injury would be redressed by the relief requested, and (3) the
court’s ability to resolve the issues presented would not be
advanced by waiting until the uncompleted event occurs. Duke
Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59,
81-82 (1978).
12
Clara, 995 F.2d 989 (9th Cir. 1993). The constitutional
component focuses on whether there is sufficient injury
while the prudential component focuses on whether there
is adequate record on which to base effective review. Id.
Its rationale is to prevent courts, through avoidance of
premature adjudication, from entangling them in abstract
disagreements.!!
't This Honorable Court has recently held a § 1983 action
“must always and everywhere be available.” Spencer v. Kemna,
_. U.S. __, 118 S. Ct. 978 (1998). However, this does not
constitute a derogation of “ripeness” principle. In Heck v.
Humphrey, 512 U.S. 477 (1994), this Court applied elements of
tort law in determining when a cause of action was ripe. Citing
prior decisions, it noted 42 U.S.C. § 1983 creates a species of tort
liability. 512 U.S. at 483.
{O]ver the centuries the common law of torts has
developed a set of rules to implement the principle
that a person should be compensated fairly for
injuries caused by the violation of his legal rights.
These rules, defining the elements of damages and
the prerequisites for the recovery, provide the
appropriate starting point for the inquiry under
§ 1983 as well.
Id. (citing Carey v. Piphus, 435 U.S. 247, 257-58 (1978)).
Accordingly, it first looked to the common law of torts to
determine whether there would be a bar to the litigation
brought before it. Id. Determining that every element necessary
to establish a civil tort action was not present in that case
(dealing with wrongful conviction claims), this Court held a
claim for damages bearing a relationship to a conviction or
sentence that has not been invalidated is not cognizable and
would not be recognized under 42 U.S.C. § 1983. 512 U.S. at 487.
13
Thus, merely because 42 U.S.C. § 1983 does not dis-
cuss concepts of ripeness, DELEWS err in arguing to this
Court that such concepts do not apply in this litigation.
Clearly they do. The only question, therefore, is whether
the Ninth Circuit correctly applied this concept in deter-
mining when an alleged constitutional violation predi-
cated upon allegations of wrongful cover-up activities
becomes “ripe”. It is respectfully submitted, to the extent
the facts before this Court can establish such a violation,
the Ninth Circuit gauged that timing correctly.
Ii. A “COVER-UP” CONSTITUTIONAL VIOLATION
CANNOT TAKE PLACE UNTIL THE UNDERLY-
ING STATE LAW CLAIM (IF ONE IS FILED) IS
RESOLVED
It cannot be gainsaid Petitioners have already filed a
proceeding in state court to persecute WAGNER for the
allegedly wrongful death of Ms. DELEW. They have con-
ducted an immense amount of discovery, have had access
to police reports (including the identification of all wit-
nesses known at the scene) and have had the opportunity
to take depositions of all persons they deemed relevant to
the case. They have accessed the medical records regard-
ing WAGNER and have her own statements regarding
her behavior that evening. They have records of the phys-
ical evidence collected at the time of the investigation.
Thus, they have not been denied the ability to factually
investigate the events Surrounding the death of Ms.
DELEW or to file a claim based on their belief as to what
“really” happened.
14
Within this context, the Ninth Circuit has consistently
held if a plaintiff, on a cover-up allegation claim, suc-
ceeds in state court then the cover-up allegations are
mooted. Dooley v. Reiss, 736 F.2d 1392, 1394-95 (9th Cir.),
cert. denied, 469 U.S. 1038 (1984).!2 Cf. Landrigan v. City of
Warwick, 628 F.2d 736, 742 (1st Cir. 1980) (dismissing
§ 1983 claim alleging cover-up where plaintiff had in fact
prevailed in previous state court action). In Karim-Panahi
v. Los Angeles Police Dept., 839 F.2d 621, 625 (9th Cir. 1980),
the Circuit specifically held — because the ultimate resolu-
tion of a state court litigation had not been finalized - a
claim for cover-up conspiracy was not ripe for judicial
consideration. Accordingly, while dismissal was appro-
priate, that dismissal should be without prejudice.
Despite Petitioners’ protestations to the contrary,
there is a strong line of reasoning supporting the concept
that the ability to file the litigation seriously limits the
claim of any “cover-up” interfering with the parties’
meaningful access to the courts. In Lewis v. Casey, 116 S. Ct.
2174 (1996), this Court reaffirmed a constitutional prereq-
uisite to prevailing on a “denial of access” claim is that
the plaintiff establish actual injury. In the context of Lewis,
this Court specifically noted an actual injury could exist
only if the party could demonstrate a non-frivolous legal
claim had been frustrated or was being impeded. 116
12 Thus, this Court has already had the opportunity to
consider this precise issue emanating from the Ninth Circuit
and has declined to exercise its jurisdiction for certiorari. It is
submitted the instant situation is not different and, therefore,
certiorari should be denied.
15
S. Ct. at 2180-81. This Court further noted the constitu-
tional right to access to the Court does not extend to
enable a plaintiff to discover grievances or litigate effec-
tively once in court. Id. See also Bounds v. Smith, 430 USS.
817 (1977). Thus, the Ninth Circuit decision in this regard
simply conforms with the pronouncements of this august
body that an actual injury be established by showing the
court that a non-frivolous legal claim had been frustrated
or was being impeded. The decision by the Ninth Circuit
is, at this early date, that actual injury is impossible to
establish. Therefore, the matter is not yet ripe for consid-
eration.
Petitioners claim their access to the court was denied
and that the state judicial process does not allow them to
remedy the wrong alleged. However, proof of a lack of
adequate state remedies is required by Hudson v. Palmer,
468 U.S. 517 (1984), in procedural due process and judi-
cial access cases. Obviously, the federal “right of access to
the courts” is not abridged when state court remains just
as open to provide a remedy as the federal courts. See
Foster v. City of Lake Jackson, 28 F.3d 425, 430 (5th Cir.
1994).
Ill. THE MAJORITY OF CIRCUITS CORRECTLY
AGREE WITH THE NINTH CIRCUIT
This same concept was clearly understood by the
Fifth Circuit in Ryland v. Shapiro, 708 F.2d 967, 974 (5th
Cir. 1983). That decision limited the “interference” associ-
ated with an alleged “cover-up” to the filing of a com-
plaint. This position was recently reasserted in Foster, 28
F.3d at 430 n. 7. The Seventh Circuit reached a similar
16
conclusion in Thompson v. Boggs, 33 F.3d at 847, 852-53
(7th Cir. 1994), cert. derizd, 514 USS. 1063 (1995), where it
held the actions did not amount to denial of right of
access to the courts because the plaintiff had sufficient
facts to properly file a lawsuit.13 Likewise, in Vasquez v.
Hernandez, 60 F.3d 325, 329 (7th Cir. 1995), the Court
found there was no constitutional injury where the plain-
tiff did not claim to have been prevented from pursuing
the tort action, or could not prove the value of that action
was reduced by the cover-up. In Waller v. Butkovich, 584
F. Supp. 909 (M.D.N.C. 1984), the Court -— addressing the
effect of a “cover-up” - stated:
The plaintiffs have great difficulty in proving
that they were damaged significantly in these
respects. The very fact that they were able to
institute this suit goes a long way toward prov-
ing the conspiracy to prevent them from obtain-
ing legal redress was unsuccessful, if indeed,
there was such a conspiracy. The plaintiffs, of
course, were not entitled to have the defendants
do investigatory work for them, nor to have the
defendants notify them of the existence of a
cause of action.
584 F. Supp. at 941.
In Swekel v. City of River Rouge, 119 F.3e 1259 (6th Cir.
1997), cert. denied, 118 S. Ct. 690 (1998), the Sixth Circuit
identified the steps to be taken in analyzing whether an
individual’s fundamental right of access to the courts has
been violated. Initially, the court must determine whether
'S Again, as with the prior Ninth Circuit case, this
Honorable Court had a chance to consider these issues on a Writ
of Certiorari and has denied them.
17
the abuse occurred pre- or post-filing. 119 F.3d at 1263. If
pre-filing (as is the situation here), the “plaintiff must
establish that the abuse denied her ‘effective’ and ‘mean-
ingful’ access to the courts.” Id. This fact can only be
established by showing the actions of the defendants
foreclosed her from filing a suit in state court or rendered
ineffective any state court remedy she previously may
have had. Id. at 1264.
in this case, the Ninth Circuit Court of Appeals made
the reasoned decision that, assuming a claim for “cover-
up” conspiracy could be established, it would have to be
done in the context of an impairment to the state law
proceeding. Since DELEWS have not been impaired at the
present time in the course of their state law proceeding,
they have not yet suffered an injury.
As noted, the basic purpose of a § 1983 damages
award is to compensate persons for injuries caused by
deprivations of constitutional rights. When a person
seeks damages, the level of damages is ordinarily deter-
mined according to principles derived from the common
law of torts. Memphis Community School District v,
Stachura, 477 U.S. 299, 306 (1986). Accordingly, plaintiffs
seeking relief must establish both causation and damages.
Myers v. Scott County, 868 F.2d 1017 (9th Cir. 1989).
With respect to recovery of damages, in order to
justify a monetary judgment, the amount would reflect
the substance of damages - as proved by substantial
evidence. In other words, the law does not permit arriv-
ing at monetary award of damages by pure conjecture.
Kelly Broadcasting Co., Inc. v. Sovereign Broadcast, Inc., 96
Nev. 188, 606 P.2d 1089 (1980). See Butler v. Dowd, 979 F.2d
_——————
18
661 (8th Cir. 1992), cert. denied, 113 S. Ct. 2395 (1993). In
Nevada, “where damage has not been sustained or where
it is too early to know whether damage has been sus-
tained” an action for damages is premature and should
be dismissed. Semenza v. Nevada Medical Liability Ins. Co.,
104 Nev. 666, 668, 765 P.2d 184, 186 (1988). Causes of
actions do not accrue until damages are certain and not
contingent. Id. See also Alper v. Stillings, 80 Nev. 84, 86-87,
389 P.2d 239, 240 (1964).
In the instant case, DELEWS have already been
allowed to file their lawsuit. They have access to the
court — meaningful access to the court at the present time.
At best, the rather pallid arguments regarding a lessening
of the damage amount they would ultimately be capable
of receiving is ambiguous and can only be resolved at the
conclusion of trial.!4
Of course, in this case, WAGNER is virtually impecu-
nious and has, as her only meaningful asset, a vehicular
insurance policy. It is LYMPD’s understanding that, in the
course of the state law proceeding, the full amount of that
policy has already been tendered in an attempt to resolve
that litigation. Arguably, an award in excess of that insur-
ance policy amount would still be a greater award than
that which Petitioners could ever hope to receive from
14 Of course, this argument raises the interesting question
that since Petitioners have the ability and the opportunity to
challenge the veracity of the investigating officers and
WAGNER, herself, at the time of the state law trial, a decision by
the state law court that the officers and Ms. WAGNER are being
truthful would appear to be fatal to Petitioners’ claim.
19
WAGNER. This fact further destroys the validity of Peti-
tioners’ claims. Therefore, dismissal without prejudice
was completely appropriate.
IV. DELEWS’ CITED CASES ARE INAPPOSITE
As already indicated to this Court, other Circuits -
such as the Fifth, Sixth, and Seventh, agree with the
position taken by the Ninth Circuit that “meaningful
access” to the courts requires more than simple lip ser-
vice. In order to support their contention the Ninth Cir-
cuit ruling is contrary to established precedent,
Petitioners misstate the holding of Bell.!>
In Bell, it was alleged that officers had engaged in a
subsequent cover-up to hide the true facts of the murder
of a private citizen. The state action ended in a mistrial
and was ultimately settled between the parties. Roughly
twenty (20) years thereafter, one of the police officers
involved in the cover-up confessed to what actually
occurred. Immediately another wrongful death action
was brought. The problem in Bell was that the officers
were directly involved in the death of the individual and,
therefore, were the only witnesses to the event. Thus, by
their own efforts, they could completely foreclose investi-
gation. None of those facts are operative here.
By the same token, Petitioners miscite Ryland. In that
case, the cover-up of crucial information resulted in the
15 In citing Bell, Petitioners ignore the more recent Seventh
Circuit case already cited to this Court of Thompson which
sustains the Ninth Circuit’s decision. Therefore, the application
of Bell in making this decision is highly suspect.
20
state court litigation being dismissed for failure to pre-
sent sufficient evidence. Again, that case is inapposite to
the facts before this Court.
Even if these two decisions were applicable to the
case at bar, the analysis underlying those decisions is
flawed. This violation occurs only when parties have
conspired to act in a manner so as to disguise or so as to
keep the victim, or the victim’s family, from discovering
the “true” facts of the event for which the plaintiff is
ultimately seeking relief. However, even the best laid
conspiracy is of no avail unless it effectively forecloses
that avenue of redress. Until some damage can be shown
(such as the inability to file a lawsuit within an applicable
statute of limitations, the wrongful imposition of criminal
charges upon an innocent party, or the inability to recover
monies from litigation based solely on the lies of the
conspirators) then the aims of the conspiracy have not
been realized and, therefore, a constitutional cause of
action for conspiracy is simply not yet ripe for adjudica-
tion.
CONCLUSION
For the foregoing reasons, LVMPD Respondents
respectfully requests this Court deny Petitioners’ Petition
for Writ of Certiorari and allow the Ninth Circuit decision
to stand — to the extent it does not wish to reconsider the
Ninth Circuit’s position in light of the pending Condi-
tional Cross-Petition for Writ of Certiorari.
21
Respectfully submitted this 14th day of October,
1998.
RAWLINGS, OLSON, CANNON,
GorMLEY & DeEsRUISSEAUX
Peter M. ANGuLO, Esq.
301 E. Clark Ave., #1000
Las Vegas, Nevada 89101
Attorneys for Respondents
SA 1
APPENDIX
COMP
Daniel T. Foley, Esq.
FOLEY & JONES, A PROFESSIONAL CORPORATION
Nevada Bar 1078
302 East Carson Avenue, Suite 901
Las Vegas, Nevada 89101
(702) 383-9852
Attorneys for Plaintiffs
DISTRICT COURT
CLARK COUNTY, NEVADA
MICHAEL C. DELEW,
individually;
MICHAEL C. DELEW, as Special
Administrator of the Estate of
ERIN RAE DELEW; H. ROY CASE NO.
MAYBERRY; and VICKIE A364616
MAYBERRY, DEPT NO. II
iat DOCKET NO. D
Plaintiffs,
VS.
JANET KATHLEEN WAGNER,
LAS VEGAS METROPOLITAN
Nm me ee ee ee ee eee ee”
POLICE DEPARTMENT, STATE OF ) COMPLAINT
NEVADA, EX REL., NEVADA
HIGHWAY PATROL, LIEUTENANT ) Clhed
EDWARD JENSEN, SERGEANT x ng 6)
RICHARD WOMACK, SERGEANT ? Ziv
CURTIS ALBERT, SERGEANT
THOMAS HARMON, DETECTIVE
RICHARD HART, DETECTIVE
WILLIAM JOHNSON, OFFICER
WILLIAM SMITH, OFFICER
KEITH BOWERS, OFFICER DAVID
Ne ee eee ee ee”
SA 2
WAGNER AND OFFICER GREG
GOEN, SERGEANT WILLIAM
ADAMSON, SERGEANT HARVEY
WEATHERFORD, TROOPER
JOSEPH A. SMITH, TROOPER
GARTH GARDNER, TROOPER
JOSEPH WYNGARD AND
TROOPER JAMES BRANNUM.
DOES I through XX inclusive, and
ROE CORPORATIONS XX through
XXX.
Defendants.
Ne Ne ee ee ee ee ee ee ee ee ee
COMES NOW the above-captioned Plaintiffs, by and
through their attorneys, and for causes of actions against
the above-captioned Defendants allege as follows:
ALLEGATIONS COMMON TO ALL
CAUSES OF ACTION
A. PARTIES
1. Plaintiff Michael C. DeLew is now, and at all
times relevant hereto has been, a resident of Clark
County, Nevada.
2. Plaintiff Michael C. DeLew is the husband of Erin
Rae DeLew and was appointed by the Court to serve as
the Special Administrator of the Estate of Erin Rae
DeLew on November 10, 1994.
3. Plaintiff H. Roy Mayberry is the father of Erin
Rae DeLew and is now, and at all times relevant hereto
has been, a resident of Clark County, Nevada.
SA 3
4. Plaintiff Vickie Mayberry is the mother of Erin
Rae DeLew and is now, and at all times relevant hereto
has been, a resident of Clark County, Nevada.
5. Defendant Janet Kathleen Wagner is now, and at
all times relevant hereto has been, a resident of Clark
County, Nevada.
6. Defendant Las Vegas Metropolitan Police Depart-
ment was created pursuant to NRS 280.010 et seq as a
merged police department of the City of Las Vegas and
Clark County. NRS 280.280.4 provides that Department
may sue or be sued with regard to any act or omission to
act on the part of the sheriff, or an officer, employee or
agent of the Department.
7. The Nevada Highway Patrol was created by the
Nevada legislature in NRS. 481-130 as a division within
the State of Nevada Department of Motor Vehicles.
8. Defendants Lieutenant Edward Jensen, Sergeant
Richard Womack, Sergeant Curtis Albert, Sergeant
Thomas Harmon, Detective Richard Hart, Detective Wil-
liam Johnson, Officer William Smith, Officer Keith
- Bowers, Officer David Wagner and Officer Greg Goen are
police officers of the Las Vegas Metropolitan Police
Department and believed to be residents of Clark County,
Nevada.
9. Defendants Sergeant William Adamson, Sergeant
Harvey Weatherford, Officer Joseph A. Smith, Officer
Garth Gardner, Trooper Joseph Wyngard and Trooper
James Brannum are law enforcement officers of the Nev-
ada Highway Patrol and believed to be residents of Clark
County, Nevada.
SA 4
10. At all times mentioned herein Defendant Las
Vegas Metropolitan Police Department was a municipal
corporation of the State of Nevada, and was the employer
of Defendants Lieutenant Edward Jensen, Sergeant Rich-
ard Womack, Sergeant Curtis Albert, Sergeant Thomas
Harmon, Detective Richard Hart, Detective William John-
son, Officer William Smith, Officer Keith Bowers, Officer
David Wagner and Officer Greg Goen and provided each
of these Defendants with an official badge and identifica-
tion card which designated and described its bearer as a
police officer of the Las Vegas Metropolitan Police
Department. The City of Las Vegas is the municipal cor-
poration in whose name the individual police officer
Defendants, and each of them, performed all acts and
omissions alleged here.
11. At all times mentioned herein Defendant Nev-
ada Highway Patrol was a municipal corporation of the
State of Nevada, and was the employer of Defendants
Sergeant William Adamson, Sergeant Harvey Weather-
ford, Officer Joseph A. Smith, Officer Garth Gardner,
Trooper Joseph Wyngard and Trooper James Brannum
and provided each of these Defendants with an official
badge and identification card which designated and
described its bearer as a officer of the Nevada Highway
Patrol. The Nevada Highway Patrol is a municipal corpo-
ration in whose name the individual police officer Defen-
dants, and each of them, performed all acts and
omissions alleged herein.
12. DOES I through XX, inclusive, and ROE Corpo-
rations XX through XXX are named as Defendants for
individual parties or corporations / partnerships that may
be identified during the course of this action. Specifically
SA 5
there may be additional Metropolitan Police Officers or
Highway Patrol Troopers, or agents or representatives or
theirs who may have come in contact with evidence or
witnesses and thereafter participated in covering up the
facts. Upon such occasions, Plaintiffs shall seek leave of
the Court to substitute such party or corporation/ part-
nership for the DOES or ROE Defendants.
B. FACTUAL ALLEGATIONS
13. On September 27, 1994 at approximately 7:15
p-m., Erin Rae DeLew, who was married to Plaintiff,
Michael C. DeLew, was riding her bicycle in the vicinity
of West Lake Mead Boulevard and Ridgemoor Street.
14. At the same time referenced above, the Defen-
dant, Janet Kathleen Wagner, was operating a motor vehi-
cle registered in her husband’s name in the same vicinity
as referenced above.
15. Janet Kathleen Wagner caused the vehicle that
she was operating to collide with Erin Rae DeLew and
her bicycle, causing Erin Rae DeLew to be projected
approximately sixty (60) feet from the point of impact
inflicting numerous lacerations, contusions, and head
injuries, upon her, and causing her death.
16. At the time of the subject accident, Janet
Kathleen Wagner was operating her vehicle in a reckless
and negligent fashion, including, but not limited to, driv-
ing her vehicle at a minimum of thirty (30%) percent
higher than the maximum posted speed limit.
17. At the time of the subject accident, Janet
Kathleen Wagner was operating her vehicle after having
SA 6
willfully and negligently consumed alcohol and was ille-
gally under the influence of alcohol at the time of the
subject accident.
18. After the traffic collision between Erin DeLew
and Defendant Janet Wagner, no fewer than 15 law
enforcement officers of the Las Vegas Metropolitan Police
Department and Nevada Highway Patrol responded to
the scene of the fatal investigation, some within a few
minutes of the collision and prior to Erin DeLew’s death.
19. Immediately upon their arrival at the scene of
the collision, and prior to Erin Delew’s death, Defendant
METRO ard NHP officers realized that Defendant Ofticer
David Wagner’s wife, Defendant Janet Wagner, had been
drinking alcoholic beverages, had been driving her vehi-
cle at speeds in excess of 30% of the posted speed limit,
and had violated the right-of-way of Erin DeLew causing
Erin DeLew’s death. Defendant police officers realized
that Plaintiffs’ daughter and wife, respectively, was
fatally injured.
20. Officer Wagner’s wife, Janet Wagner, admitted
that prior to the fatal collision she had been drinking
alcoholic beverages. All of the Defendant police officers
had substantial experience in the administration of field
sobriety tests, yet took no action to personally determine
Janet Wagner’s sobriety or level of intoxication.
21. Pursuant to the Las Vegas Metropolitan Police
Department policy of investigating traffic accidents and
criminal incidents involving fellow police officers and
their immediate family members, and despite the patent
conflict of interest, Defendant METRO police officers,
who were clothed with decision-making authority with
SA 7
respect to the investigation, proceeded to cover-up the
truth of Erin DeLew’s death.
22. Beginning immediately upon their arrival at the
scene of the fatal traffic collision, and prior to Erin
DeLew’s death, and continuing until the present time,
Defendants deliberately and willfully sought to cover up
The facts surrounding the death of Plaintiffs’ daughter
and wife, respectively, in order to protect the wife of their
fellow police officer. Defendant Officer Wagner, from
criminal and civil prosecution for causing the death of
Erin DeLew in violation of Plaintiffs’ constitutional
rights. By so doing, Defendants intentionally interfered
with the Plaintiffs’ right of meaningful access to courts,
protected by the U.S. Constitution, as more fully
described below. These acts and omissions, which were
undertaken in reckless disregard and callous indifference
to Plaintiffs’ rights, include the following:
a. Deliberately refraining from performing a field
sobriety test upon Officer David Wagner’s wife, Janet
Wagner, despite the fact that (1) Janet Wagner smelled of
alcohol; (2) Janet Wagner admitted to drinking alcohol
just prior to the fatal collision; and (3) Janet Wagner had
been speeding, had made an erratic lane change, and had
violated Erin DeLew’s right-of-way causing the death of
Erin DeLew;
b. Deliberately refraining from performing a chemi-
cal blood alcohol test within two hours of the fatal traffic
collision;
c. Failing to accurately record statements of all per-
cipient witnesses, and fabricating other portions of these
witness statements;
SA 8
d. Failing to preserve and record physical eviden-e
at the scene of the accident including skid marks, relevant
debris and Janet Wagner’s level of intoxication;
e. Allowing Defendant Janet Wagner to leave the
scene of the fatal collision during the investigation;
f. Making misrepresentations to Plaintiffs, both oral
and via the traffic collision report, regarding the facts
surrounding their daughter’s and wife’s death;
g. Making misrepresentations to the Coroner’s
Office investigator regarding the facts of the fatality and
concealing material information from the Coroner's
Office;
h. Issuing a false and fraudulent report claiming
Plaintiffs’ daughter and wife, respectively, was responsi-
ble for her own death by making an unsafe lane change
with little or no basis for so concluding, and causing the,
same to be published in newspapers; and
i. Covering up the fraudulent investigation con-
ducted concerning Erin DeLew’s death and thereby
implicating themselves in the continuing conspiracy to
violate Plaintiffs’ constitutional rights; and
j. Failing and refusing to take two blood draws
separated by time when the blood draw was finally
taken.
23. As a result of Defendants actions and inaction
described above and below, Plaintiffs have been injured
and caused to suffer as follow:
a. Emotional distress, grief, aggravated grief
and related damages;
SA 9
b. Loss of consortium and companionship;
c. Economic losses;
FIRST CAUSE OF ACTION
(Violation of 42 U.S.C. 1983)
24. Plaintiffs repeat and reallege each and every
allegation contained in paragraphs 1 through 23 above as
fully set forth herein.
25. This cause of action is to redress the deprivation
under the color of statute, ordinance, regulation, policy,
custom, practice or usage of a right, privilege, and unity
secured to Plaintiffs by the First, Fifth and Fourteenth
Amendments to the Constitution of the United States (42
USC § 1983).
26. Plaintiffs are members of a class of pe sons
involved in traffic incidents or criminal incidents with
members or family members of the Las Vegas Metro-
politan Police Department or the Nevada Highway
Patrol.
27. Defendant police officers, while clothed with
authority as police officers and acting under color of state
law, covered up the true facts of Erin DeLew’s death in
order to protect Janet Wagner from criminal and civil
liability for Erin’s death. Defendants, through their
actions, inaction, and acquiescence, used their power and
position to violate Plaintiffs’ constitutional rights by cov-
ering up the fact that Janet Wagner caused the death of
Erin DeLew.
SA 10
_ 28. The facts alleged above are part of the customs,
practices, policies and decisions of the Las Vegas Metro-
politan Police Department and Nevada Highway Patrol
including, but not limited to, the following:
a. Inadequately and/or fraudulently investigating
allegations of criminal and civil misconduct involving
fellow law enforcement officers and their immediate fam-
ily members, in order to cover-up and protect fellow
police officers and their relatives from disciplinary, crimi-
nal and civil actions;
-b. Covering up the criminal and/or wrongful activ-
ities of fellow law enforcement officers and their immedi-
ate family members by false reporting, false
investigating, perjury and dishonesty;
c. Refusing to supervise, reprimand and/or disci-
pline law enforcement officers who engage in miscon-
duct, whether on or off duty;
d. Investigating traffic and criminal incidents
involving fellow law enforcement officers and their
immediate family members;
e. Failing to administer adequate and standard field
sobriety tests to fellow law enforcement officers or their
immediate family members suspected of driving under
the influence; in effect, giving preferential treatment to
fellow police officers and their immediate family mem-
bers;
f. Failing to enforce the law, rules, regulations and
procedures when an investigation is conducted of a fel-
low law,enforcement officer’s misconduct, or a relative of
a fellow police officer, and therefore, denying Plaintiffs
SA 11
___and similarly situated citizens equal protection of the — —__
laws and meaningful and unimpaired access to the courts
as provided in the U.S. Constitution;
g- Inadequately training and supervising police.
officers with respect to the investigation of misconduct by
fellow law enforcement officers or their immediate my
h. Choosing a policy of not implementing pro-
cedures and policies that would prevent law enforcement
officers from impartially investigating misconduct,
including criminal, traffic and other wrongful incidents,
involving fellow officers and/or their immediate family
members; and
i. Tacitly approving of police officers using their
power and position to protect fellow law enforcement
officers and their relatives through preferential treatment
resulting in interference with other citizens’ rights,
including the right to meaningful access to courts, as
described more fully below.
j. Defendants chose to consciously implement the
above customs and policies from various available alter-
natives.
29. Each of the individual Defendants and METRO
and the NHP separately and in concert, acted willfully,
knowingly, with reckless disregard and deliberate indif-
ference, and purposefully with the intent to deprive
Plaintiffs of their rights and privileges, and did in fact
violate:
SA 12
ae Plaintiffs’ substantive right to meaningful and
unimpaired access to courts as protected by Article 4 of
the Constitution and the Fourteenth Amendment;
b. Plaintiffs’ right to petition the government for
redress of grievances without interference as protected by
the First Amendment right to petition;
c. Plaintiffs’ right to present to the judiciary allega-
tions concerning violations of fundamental constitutional
rights without impairment or interference as protected by
the Due Process Clause of the Fifth and Fourteenth
Amendment;
d.' Plaintiffs’ constitutionally protected right to
prosecute without impairment or interference a wrongful
death suit for the death of their daughter and wife,
respectively, in Nevada State Court;
e. Plaintiffs’ right to substantive due process of law,
including the right to be free of arbitrary and abusive
assertion of governmental power, to be treated with fun-
damental fairness by governmental authorities, and to
maintain their personal integrity and dignity as parents
and citizens;
- f. Procedural due process of law, including the right
to have had a fair and partial investigation of the death of
their daughter and wife, respectively, and to have had
notice and an opportunity to be heard before METRO and
the NHP impaired their property interest to seek total
and full redress for Erin DeLew’s wrongful death; and
g. Equal protection of the law, including the right to
have had a fair and impartial investigation of the death of
SA 13
their daughter and wife, respectively, and to have the _
laws equally applied to them.
h. All of the above rights and privileges are secured
to Plaintiffs by the provisions of the First Amendment
and the due process clause of the Fifth and Fourteenth
Amendments to the Constitution of the United States,
and by Title 42, United States Code Section 1983.
30. The above acts or omissions of Defendant police
officers, both formal and informal, were undertaken
while under color of state law and resulted in the viola-
tion of Plaintiffs’ constitutional rights. Likewise, the cus-
toms, practices, policies and decisions of METRO and the
NHP alleged herein and as applied to Plaintiffs, resulted
in violation of Plaintiffs’ constitutional rights as stated
herein.
31. Despite the fact that they knew or should have
known of the fact that these acts, omissions, decisions,
practices, customs and policies, both formal and informal,
were being carried out by their agents and employees,
METRO and the NHP have taken no steps or efforts to
order a halt to this course of conduct, to make redress to
these Plaintiffs or other citizens injured thereby, or to take
any disciplinary action whatsoever against any of their
fellow law enforcement officers. In effect, Defendants
METRO and the NHP have ratified the wrongful conduct
and custom resulting in violation of Plaintiffs’ civil rights.
32. Asa direct and proximate result of the aforesaid
acts, omissions, customs, practices, policies and decisions
of the individual police officer Defendants, METRO and
the NHP, and each of them, Plaintiffs suffered great men-
tal anguish, fright, nervousness, anxiety, grief, shock,
SA 14
humiliation, loss of consortium, indignity, embarrass-
ment, apprehension all to their damage in a sum to be
determined at trial. Plaintiffs have been greatly humili-
ated a result of the foregoing acts of the Defendants.
Plaintiffs have been forced to incur substantial obligation
for attorney’s fees, court reporter’s fees, investigation
expenses, and other expenses in the vindication of their
constitutional rights.
33. Defendants’ actions were attended by circum-
stances of malice, insult and a reckless disregard for the
rights and feelings of Plaintiffs.
SECOND CAUSE OF ACTION
(Conspiracy to Violate 42 U.S.C. 1983)
34. Plaintiffs repeat and reallege each and every
allegation contained in paragraphs 1 through 33 above as
fully set forth herein.
35. This cause of action is to redress the deprivation
under the color of statute, ordinance, regulation, policy,
custom, practice or usage of a right, privilege and immu-
nity secured to Plaintiffs by the First and Fourteenth
Amendments to the Constitution of the United States by
virtue of a conspiracy between Defendants Janet Wagner,
David Wagner, the Las Vegas Metropolitan Police Depart-
ment, State of Nevada, ex rel., the Nevada Highway
Patrol, Lieutenant Edward Jensen, Sergeant Richard
Womack, Sergeant Curtis Albert, Sergeant Thomas Har-
mon, Detective Richard Hart, Detective William Johnson,
Officer William Smith, Officer Keith Bowers, Officer Greg
Goen, Sergeant William Adamson, Sergeant Harvey
Weatherford, Trooper Joseph A. Smith, Trooper Garth
SA 15
Gardner, Trooper Joseph Wyngard and Trooper James
Brannum, Does I through XX inclusive, and Roe Corpora-
tions XX through XXX, to cover up the true facts of Erin
DeLew’s death to protect Janet Wagner from criminal and
civil liability for Erin’s death.
36. During all times mentioned herein, the individ-
ual named law enforcement officers and each of them,
separately and in concert, acted under color and pretense
of law, under color of the statutes, ordinances, regula-
tions, policies, practices, customs and usage’s of the State
of Nevada, the County of Clark and City of Las Vegas.
Each of the individual Defendants here, separately and in
concert, engaged in the illegal conduct here mentioned to
the injury of Plaintiffs and deprived Plaintiffs of the
rights, privileges, and immunities secured to Plaintiffs by
the First, Fifth and Fourteenth Amendments to the Con-
stitution of the United States and the laws of the United
States, as identified above.
37. On and after September 27, 1994, at said time
and place, and thereafter, while investigating the incident
described herein, Defendants, members of METRO and
NHP, including Defendant law enforcement officers, and
DOES I-XX and XX-XXX, and each of them, while acting
under the color of state law, consciously, willfully, mali-
ciously and intentionally conspired to protect fellow Offi-
cer’s David Wagner’s wife, Defendant Janet Wagner,
from, civil and criminal liability by covering up the true
facts of Erin DeLew’s death These acts, as more fully
described above, include refraining from administering a
field sobriety test to Officer’s David Wagner’s wife or a
blood alcohol test within two hours of the collision, or
two blood draws separated by time, intentionally and
SA 16
willfully refraining from collecting and recording other
evidence at or near the scene of the accident, including
witness statements, skid marks, point and area of impact,
and Janet Wagner’s level of intoxication.
38. Defendants overtly acted in furtherance of this
conspiracy by undertaking the acts described above.
39. Defendant METRO police officers and Defen-
dant NHP officers were clothed with the power and
authority of Clark County, the City of Las Vegas, and the
State of Nevada, respectively, to make decisions on behalf
of these public entities. By virtue of this delegated power
and authority, these Defendants furthered the conspiracy
in such fashion that the conspiracy became an informal
decision, practice or policy of Clark County, the City of
Las Vegas, and State of Nevada.
40. Defendants consciously, intentionally, willfully.
and deliberately conspired and continued to conspire and
agree among themselves to damage Plaintiffs by con-
sciously, intentionally, willfully, and deliberately destroy-
ing, altering, fabricating and/or failing to note and/or
record evidence, in furtherance of the conspiracy to vio-
late Plaintiffs’ civil rights. Moreover, Defendants’ con-
spiracy was executed pursuant to the customs and
policies identified above resulting in violations of Plain-
tiffs’ constitutional rights. Defendants chose to con-
sciously implement these customs and policies from
various available alternatives.
41. The above acts or ommissions of Defendant
police officers, both formal and informal, were under-
taken while under color of State law and resulted in the
violation of Plaintiffs’ constitutional rights. Likewise, the
eS ee es eet ey
SA 17
customs, practices, policies and decisions of METRO and
NHP alleged herein and as applied to Plaintiffs, resulted
in violation of Plaintiffs’ Constitutional rights as identi-
fied above.
42. The above acts, omissions, customs, practices
and/or decisions of METRO and the NHP, while carried
out under color of state law, have no justification or
excuse in law, and instead constitute a gross abuse of
governmental authority and power, shock the conscience,
are fundamentally unfair, arbitrary and oppressive, and
unrelated to any activity in which police officers may
appropriately and legally engage in the course of protect-
ing persons or property, or ensuring civil order. The
above acts, omissions, decisions, customs, practices, or
policies were consciously chosen from among various
alternatives.
43. Asa direct and proximate result of the conspir-
acy to violate their constitutional rights, Plaintiffs have
suffered great mental anguish, fright, nervousness, anxi-
ety, grief, shock, humiliation, indignity, embarrassment,
apprehension all to their damage in a sum to be deter-
mined at trial. Plaintiffs have also been forced to incur
substantial obligations for attorney’s fees, court repor-
ter’s fees, investigation expenses, and other expenses in
vindication of their constitutional rights.
44. Defendants’ actions were attended by circum-
stances of malice, insult and a reckless disregard for the
rights and feelings of Plaintiffs.
WHEREFORE, Plaintiffs pray for judgment in favor
of Plaintiffs, and against Defendants, as follows:
SA 18
FIRST CAUSE OF ACTION
1. For special damages in an amount in excess of
$10,000.00;
\
2. For general damages for each Plaintiff in an
amount in excess of $10,000.00;
3. For exemplary damages, in an amount to be
determined by the trier of fact.
4. For attorney's fees and costs; and
5. For such other and further relief as this Court
deems just and proper.
SECOND CAUSE OF ACTION
1. For special damages in an amount in excess of
$10,000.00;
2. For general damages for each Plaintiff in an
amount in excess of $10,000.00;
3. For exemplary damages in an amount to be deter-
mined by the trier of fact.
4. For attorney’s fees and costs; and
5. For such other and further relief as this Court
deems just and proper.
SA 19
DATED this 26th day of September, 1996.
Respectfully Submitted,
FOLEY & JONES
A PROFESSIONAL CORPORATION
/s/ Daniel T. Foley
Daniel T. Foley, Esq.
Nevada Bar No. 1078
302 East Carson Ave., Suite 901
Las Vegas, Nevada 89101
Attorneys for Plaintiffs
SA 20
0056
KEITH EDWARDS, ESQ.
Nevada Bar No. #002299
EDWARDS & HALE, Ltd.
415 South Sixth Street, #300
Las Vegas, Nevada 89101
(702) 382-1414
Attorneys for Defendant
DISTRICT COURT
CLARK COUNTY, NEVADA
MICHAEL C. DELEW, individually
and MICHAEL C. DELEW, as
Special Administrator of the Estate
of ERIN RAE DELEW; H. ROY
MAYBERRY; and VICKIE
MAYBERRY,
Plaintiffs,
)
)
)
)
)
) Case No.
) A364616
) Dept.’ No. I
vs. )
JANET KATHLEEN WAGNER, )
and DOES I through V inclusive, )
and ROE CORPORATIONS V )
through X, ‘
)
)
Defendants.
Docket No. D
MOTION TO DISMISS
(Filed Jan. 24, 1997)
Date of Hearing: 2/20/97
Time of Hearing: 9 AM
COMES NOW, the Defendant, JANET KATHLEEN
WAGNER, by and through her attorneys and moves this
SA 21
Honorable Court pursuant to the provisions of NRCP
12(b) and 56(b) for an order dismissing the Plaintiffs’
Complaint on file herein.
This motion is made on the grounds that the Plain-
tiffs cannot state a valid cause of action and on the
further grounds that there is no undisputed issues of fact
relevant to a final judgment in this action.
This motion is made and based on all files, pleadings
and records on file herein together with the points and
authorities attached hereto.
EDWARDS & HALE, Ltd.
By /s/ Keith Edwards, Esq.
KEITH EDWARDS, ESQ.
Nevada Bar #002299
Attorneys for Defendant,
Janet Kathleen Wagner
415 South Sixth Street, #300
Las Vegas, Nevada 89101
NOTICE OF MOTION
TO: Plaintiffs above-named; and
TO: DANIEL T. FOLEY, ESQ., their attorney;
YOU, AND EACH OF YOU, WILL PLEASE TAKE
NOTICE that the undersigned will bring the foregoing
Motion to Dismiss on for hearing before the above-enti-
tled Court on the 20 day of February, 1997, at the hour of
9:00 o’clock in the forenoon said date in Department No.
II.
SA 22
DATED this 23rd day of January, 1997.
EDWARDS & HALE, Ltd.
a By /s/ Keith Edwards
KEITH EDWARDS, ESQ.
Nevada Bar #002299
Attorneys for Defendant,
Janet Kathleen Wagner
415 South Sixth Street,
Suite 300
Las Vegas, Nevada 89101
POINTS AND AUTHORITIES
On or about September 27, 1997 Janet Rae Delew was
riding her bicycle across Lake Mead Boulevard and rode
into the path of the vehicle operated by the Defendant
JANET WAGNER, where she was struck and killed. On
November 10, 1994 a civil action was filed in the District
Court for Clark County, Nevada by the heirs of Janet Rae
Delew against Defendant JANET WAGNER alleging neg-
ligence and intoxication on the part of the defendant.
That matter proceeded in normal course and extensive
discovery followed including the depositions of over
twenty potential trial witnesses or investigators of the
accident. The depositions that were taken include the
depositions of all but one of the defendants now nan ed
in this action. After taking the depositions of all of the
officers at the scene of the accident and on the eve of the
statute of limitations the plaintiffs filed a motion to
amend their complaint to join the investigating officers as
parties. The motion was denied and this new and sepa-
rate action followed.
"
SA 23
Clearly erroneous allegations
_Apparently in an attempt to state a cause of action
under 42 USC § 1983 the plaintiff has alleged:
19. Immediately upon their arrival at the scene
of the collision, and prior to Erin Delew’s death,
defendant METRO and NHP officers realized
that Defendant Officer David Wagner's wife,
Defendant Janet Wagner, had been drinking
alcoholic beverages, had been driving her vehi-
cle at speeds in excess of 30% of the posted
speed limit, and had violated the right-of-way
of Erin DeLew causing Erin DeLew’s [sic] death.
Defendant police officers realized that Plaintiffs’
daughter and wife, respectively, was fatally
injured.
There appears to be an inconsistency in the allegations
which state that the officers arrived at the scene “prior to
Erin Delew’s death” and then allege in the same Ppara-
graph that the “defendant police officers realized that
[Erin Delew] was fatally injured.” The issue of the time of
Mrs. Delew’s death has some bearing on a § 1983 action
and is resolved very quickly by the testimony of the first
witness at the scene of the accident.
Robert A. McNeese was a Lieutenant Colonel in the
Air Force assigned to Nellis Air Force Base. At the time of
the accident he was walking his dog when he heard a
noise, knew an accident had occurred and ran to the
scene. He stated that he was the first person at the scene.
Deposition transcript pp. 12-13. After arriving at the
scene he went directly to the victim. He testified as fol-
lows:
SA 24
Q. With. respect to the victim, were you
able to render any assistance? |
A. I felt for pulse. Couldn't find a pulse. I
listened for breathing. Couldn’t hear a heart-
beat. Couldn’t hear any breath, you know, with
my ear up to her back as she was laying face
down. There was a lot of blood loss, a massive
head wound. And I checked her pupils and
although I’m not a medical person, I have seen
fatalities before, and I determined in my mind
that she was a fatality. When I got to her, her
eyes were — her pupils were fixed and dilated,
and that usually a pretty good sign of no brain
activity.
Q. Did you have any conversations with
anybody at the scene?
A. Yes. I had a conversation with my wife
because she came over when I told her that I
couldn’t find a pulse and she felt for a pulse
both on the writs and on the victim's neck, and
my wife thought she felt a very, very faint pulse,
and it may have just been some residual. I don’t
think it wasn’t a strong strong pulse. We had
that conversation. And then another woman
who I believe was the woman on the bicycle
came into the street and she was suggesting that
we try to give the victim CPR and I disagreed
with her. I said I didn’t think it would do any
good because I thought the person was already
dead and besides the fact that there’s a bad
trauma to the head and she’s laying on her
stomach and you’d have to roll her over to do
CPR and that could create more problems with a
head or neck injury, and we should probably
just wait and before the police arrive and before
SA 25
the ambulance arrived two gentlemen were jog-
ging by, running by. Both of them ran over and
asked what’s going on?” and one of them said,
“I’m a doctor.” And he bent down over the -
called her the body and said, “I think she’s
dead.” And he did the same thing, lifted up her
eyelid and looked at her eyes and he said, “Yes,
I think she’s dead. There’s nothing that can be
done for her here.” And I said, “The ambulance
is on the way and the police are on the way.”
And he said, “fine,” and continued to run up the
street. Deposition pp. 18-20 (See Exhibit “A”).
The witness went on to explain that a single patrolman
arrived at the scene checked the victim and indicated that
nothing could be done for her. An emergency vehicle
then arrived, hooked up a small portable EKG and got a
flat line and “they said she was deceased at that point.”
(Deposition p. 22).
There is no 42 USC § 1983 cause of action
The foregoing is of significance because of the claim
that Mrs. Delew’s civil rights were violated. However, the
First Cause of Action of the Complaint is not directed at
Mrs. Wagner. The plaintiffs appear to have recognized
that by its terms, § 1983 applies only to individuals acting
“under color” of law. In other words, a defendant cannot
be held liable under 1983 unless his actions can be “fairly
attributable to the state.” Lugar v. Edmondson Oil Co., 457
U.S. 922, 73 L. Ed. 2d 482, 102 S. Ct. 2744 (1982). Perhaps
that is why Janet Wagner is only referred to peripherally
in the First Cause of Action.
SA 26
The Ninth Circuit Court of Appeals has ruled that the
civil rights of a person cannot be violated after the death
of that person. Estate of Cartwright v. City of Concord, 618
F. Supp. 722 (ND CA.1985), aff’d 856 F.2d 1437 (9th Cir.
1988).
Defendants argue that no post-death events
could legally interfere with plaintiffs’ alleged
constitutional rights, under the authority of
Guyton v. Phillips, 606 F.2d 248, 250 (9th Cir.
1979); Whitehurst v. Wright, 592 F.2d 834,
840-841 (5th Cir. 1979); McQurter v. City of
Atlanta, 572 F. Supp. 1401, 1419 (N.D. Ga. 1983).
Those authorities are persuasive that the civil
rights of a person cannot be violated after death,
and therefore the scope of an investigation after
death is not actionable.
Plaintiffs’ response is that the lack of thor-
oughness of the investigation was a policy of
defendants, which policy existed prior to Cart-
wrights’ death, and that the policy resulted in
procedures which insulated the city and its per-
sonnel from liability for violations of constitu-
tional rights. See Webster v. City of Houston,
689 F.2d 1220 (5th Cir. 1982), aff'd in part on
rehearing, 739 F.2d 99 illegible Cir. 1984). See
also Gomez v. Whitney, 757 F.2d 1005 (9th Cir.
1985).
The court rejected the claim that the defendants’ inade-
quate investigation and failure to preserve evidence
deprived her of a constitutional right. Id. at 730. In affirm-
ing the lower court decision the Ninth Circuit Court of
Appeals specifically also rejected the claim that there had
been a deprivation of a constitutional right. See 856 F.2d
at 1438.
SA 27
The Ninth Circuit has also ruled that there is no
constitutional right “to have a full and fair police investi-
gation into violence done against themselves or their
children.” In the case of Gomez v. Whitney, 757 F.2d 1005
(9th Cir. 1984), the plaintiffs brought an action when their
son died as a result of an apparent accident while tres-
passing on a construction site with two other juveniles.
The police conducted a cursory investigation and decided
not to recommend that any charges be brought against
the decedent’s companions. When Mr. Gomez, Sr. was
unable to convince the police department to re-open the
investigation he filed an action claiming that his family’s
civil rights had been violated by the police department's
inadequate investigation. In affirming the district court’s
dismissal of the case the appellate court said:
A prerequisite to recovery under the Civil
Rights Act, 42 U.S.C. § 1983, is that the plaintiff
prove that the defendants deprived him of a
right secured by the Constitution and the laws
of the United States. Martinez v. California, 444
U.S. 277, 284, 62 L.Ed. 2d 481, 100 S. Ct. 553
(1980). A threshold question in this appeal, then
is whether or not the appellants’ claim involves
the deprivation of a protected right.
The appellants claim that the right infringed
was a due process right to have a full and fair
police investigation into violence done against
themselves or their children. However, we can
find no instance where the courts have recog-
nized inadequate investigation as sufficient to
state a civil rights claim unless there was
another recognized constitutional right
involved. See, e.g., Smith v. Ross, 482 F.2d 33 (6th
SA 28
Cir. 1973) (police failure to protect against hous-
ing discrimination).
Because the appellants have failed to state
facts that constitute the infringement of a pro-
tected right, their § 1983 claim must necessarily
fail, and the district court was consequently cor-
rect in granting summary judgment against
them. The judgment of the district court is there-
fore AFFIRMED. |
The Plaintiffs’ attempt to link the wrongful death
action of Erin Delew to the subsequent police investiga-
tion is merely a veiled attempt to insert into this action
facts which occurred after the accident which had noth-
ing to do with the death of the bicyclist. The true nature
of this action is best reflected by the eye witness who
simply states that the bicyclist rode her bike across the
path of an oncoming vehicle without looking (see Exhibit
“B”). No matter what the police did or did not do after
the accident will not change the actions of the bicyclist.
However, if the Plaintiffs can insert enough extraneous
and collateral facts into the case to make it appear that
something in the investigation was done wrong, there
might be enough to obscure the actions of the bicyclist
and change the focus of the trial to one of investigative
misconduct. The investigation has nothing to do with the
wrongful death of the bicyclist.
There is no “Conspiracy to Violate 42 U.S.C. 1983”
cause of action
Again for a conspiracy cause of action to have any
substance the victim had to be alive when (as plaintiffs
allege) “[d]efendant police officers realized that . . . [Erin
SA 29
Delew] was fatally injured.” (Complaint J 19) If as
alleged, the officers realized she was fatally injured, there
was already a fatality and there is no violation of civil
rights.
However, the allegations set forth in W1 34 through
44 fail to set forth any conduct of Defendant JANET
WAGNER which indicated her knowledge or participa-
tion in any conspiracy. In fact that conspiracy claim seems
to omit Mrs. Wagner when the Plaintiffs allege in { 40:
Moreover, Defendants’ conspiracy was executed
pursuant to the customs and policies identified
above resulting in violations of Plaintiffs’ consti-
tutional rights. Defendants chose to consciously
implement these customs and policies from var-
ious available alternatives.
Obviously Mrs. Wagner had no customs or policies which
violated the plaintiffs constitutional rights; nor is she
accused of participating [sic] the implementation of those
customs and policies. In short the plaintiffs seem to aim
their conspiracy action at the investigative agencies
rather than at Mrs. Wagner.
In a somewhat analogous case of Scott v. Dally, No.
92-5006-CV-SW-1 (W.D. MO. 1992) the court observed
that:
Plaintiff has not alleged a conspiracy of any sort
between the prosecutor and the individual
defendants in this action. Indeed, the plaintiff
alleges that defendant Gil Stevens, as a repre-
sentative of defendant Brady Stevens Company,
committed “perjury” when he presented his
information to defendant Dally for prosecution.
SA 30
Rather than alleging any conspiracy or agree-
ment between the defendants, plaintiff has
alleged that one defendant (defendant Stevens)
gave false information to another defendant
(defendant Dally). Moreover, in her complaint,
plaintiff makes absolutely no allegations what-
soever regarding defendant McMillan.
Similar to the Scott case the Plaintiffs have not alleged
any overt action on the part of Mrs. Wagner. A conspiracy
requires a willful participation by the participants in
order to meet the requirements of 42 U.S.C. 1983. Shipley
v. First Fed. § & L Ass’n of Delaware, 703 F. Supp. 1122 (D.
Del. 1988).
Plaintiffs are attempting to split their cause of action
The Plaintiffs in this case filed a wrongful death
action over two years ago against Janet Wagner. Now,
after extensive discovery in that case, they seek to aug-
ment that action with this new and separate cause of
action. It has long been established that a party may not
split his cause of action. Louisiana courts hold that a
plaintiff cannot split his claims for personal injuries and
property damage arising from the same accident. Forten-
berry v. Clay, La.App.1953, 68 So.2d 133; Thompson v.
Kivett & Reel, Inc., La.App.1946, 25 So.2d 124. In addition,
in wrongful death cases courts forbid the survivor to split
his damages and the decedent’s damages. See Reed v.
Warren, 1931, 172 La. 1082, 136 So. 59; Norton v. Crescent
City Ice Mfg. Co., 1933, 178 La. 135, 150 So. 855.
The issue was discussed in some depth in the case of
King Gen Contrs., Inc. v. Reorganized Church of Jesus Christ
of Latter Day Saints, 1991 Mo. App. LEXIS 444, (Court of
si a A ee ee ee
SA 31
Appeals of Missouri, Western District, 1991). In that
action the court observed:
A cause of action which is single may not be
split and filed or tried piecemeal, the penalty for
which is that an adjudication on the merits in
the first suit is a bar to a second suit. In general,
the test for determining whether a cause of
action is single and cannot be split is: 1) whether
Separate actions brought arise [*6] out of the
same act, contract or transaction; 2) or whether
the parties, subject matter and evidence neces-
Sary to sustain the claim are the same in both
actions: The word “transactions” has a broad
meaning. It has been defined as the aggregate of
all the circumstances which constitute the foun- ;
dation for a claim. It also includes all of the facts
and circumstances out of which an injury arose.
[Citations omitted].
The cases dealing with res judicata and the
splitting of a single cause of action apply the
same standard as the compulsory counterclaim
rule. In State ex rel. J.E. Dunn, Jr. & Associates,
Inc. v. Schoenlaub, 668 S.W.2d 72, 75 (Mo. banc
1984), our Supreme Court said, in holding
barred a claim which logically should have been
presented as a counter claim in an earlier law-
suit:
The clear function of the [complusory coun-
terclaim] rule is to serve as “a means of bringing
all logically related claims into a single litiga-
tion, through the penalty of precluding the later
assertion of omitted claims.”
As discussed above, the Plaintiffs’ decision to willfully
hold off on their 1983 action was fraught with error. They
have attempted to prejudice Janet Wagner, but have acted
SA 32
at their own peril. Their actions are improper and fail to
follow the rules established by the courts.
Conclusion
As set forth above the Plaintiffs have misconstrued
the facts, intermixed causes of action and failed to set
forth facts necessary to support a 42 U.S.C. 1983 action
against Mrs. Wagner. The cause of action represents an
attempt on the part of the Plaintiffs to split their actions
and use one for discovery and hold off on the other until
they had obtained the depositional statements of the new
defendants in order to prove up their new cause of
action. The Plaintiffs seek to do by indirection that which
cannot be done directly. Their action against Mrs. Wagner
must fail.
Respectfully submitted,
EDWARDS & HALE, Ltd.
By /s/ Keith Edwards
KEITH EDWARDS, ESQ.
Nevada Bar #002299
Attorneys for Defendant,
Janet Kathleen Wagner
415 South Sixth Street, #300
Las Vegas, Nevada 89101
CERTIFICATE OF MAILING
I hereby certify that I am an employee of EDWARDS
& HALE, Ltd., and that on the 24th day of January, 1997, I
deposited for mailing at Las Vegas, Nevada, a true and
SA 33
accurate copy of the above and foregoing Motion to Dis-
miss addressed as follows:
DANIEL T. FOLEY, ESQ.
FOLEY & JONES
302 E. Carson Avenue, Suite 901
Las Vegas, Nevada 89101
/s/ Barbara E. Shank
BARBARA E. SHANK,
an employee of
EDWARDS & HALE, Ltd.
EXHIBIT A
[p. 18] involved in the accident, or at least it looked to me
as if there had been drinking involved in the accident.
Q. Did you smell any alcohol on her breath?
A. No.
Q. Was her thought process logical?
MR. RASTELLO: No foundation, objection.
THE WITNESS: I couldn’t say it was logical -
whether it was logical or not.
Again she was, you know, just from my observation,
I think she was in shock. She was in shock and didn’t,
you know, just didn’t want to believe what had happened
or, you know, was trying to comprehend what had hap-
pened, but she — I wasn’t surprised at her conduct that,
SA 34
you know, considering what just had happened. She
acted like a lot of people would in the same situation.
BY MR. EDWARDS:
Q. With respect to the victim, were you able to
render any assistance?
A. I felt for pulse. Couldn’t find a pulse. I listened
for breathing. Couldn’t hear a heartbeat. Couldn’t hear
any breath, you know, with [p. 19] my ear up to her back
as she was laying face down.
There was a lot of blood loss, a massive head wound.
And I checked her pupils. And although I’m not a medi-
cal person, I have seen fatalities before, and I determined
in my mind that she was a fatality. When I got to her, her
eyes were — her pupils were fixed and dilated, and that’s
usually a pretty good sign of no brain activity.
Q. Did you have any conversations with anybody at
the scene?
A. Yes.
I had a conversation with my wife because she came
over when I told her that I couldn’t find a pulse and she
felt for a pulse both on the wrist and on the victim’s neck,
and my wife thought she felt a very, very faint pulse, and
it may have just been some residual. I don’t think - it
wasn’t a strong pulse.
We had that conversation. And then another woman
who I believe was the woman on the bicycle came into
the street and she was suggesting that we try to give the
victim CPR and I disagreed with her. I said I didn’t think
it would do any good because I thought the person was
SA 35
already [p. 20] dead and besides the fact that there’s a
bad trauma to the head and she’s laying on her stomach
and you'd have to roll her over to do CPR and that could
create more problems with a head or a neck injury, and
we should probably just wait.
And before the police arrived and before the ambu-
lance arrived, two gentlemen were jogging by, running
by. Both of them ran over and asked, “What's going on?”
And one of them said, “I’m a doctor.” And he bent down
over the - called her the body and I said, “I think she’s
dead.”
‘ And he did the same thing; lifted up her eyelid and
; looked at her eyes and he said. “Yes, I think she’s dead.
There’s nothing that can be done for her here.” And I
said, “The ambulance is on the way and the police are on
the way.” And he said, “Fine,” and continued to run up
the street.
Q. How do you know an ambulance and the police
were on the way?
A. Well, I was assuming that because Mrs. Wagner
had a cellular phone and I believe either she used it or
someone else did. But a guy had driven up shortly after
the accident in another car and he did have a cellular
phone and he, I know, either [p. 21] called 911 or was
using the cellular phone to call for help.
Q. Did you have any other conversations with any-
one at the scene?
A. Various conversations with the ambulance peo-
ple when they first got there, the first policeman on the
scene, and I’m not real sure. I thought it was a motorcycle
SA 36
patrolman because I thought he had a helmet on, but I’m
not a hundred percent sure, but I know the policeman
first got there. I was still with the victim and he came up
and I told him what I thought, and he looked at the
victim and felt for a pulse also and didn’t think that there
was anything that we could do for her at that point.
Q. Do you know if the police or the ambulance
arrived first?
A. I believe the police arrived first. I think a single
patrolman arrived — it seemed like a long time - 10 or 15
minutes after I had been there. And then a while after
that before the ambulance showed up, another five to ten
minutes, at least. It seemed like an eternity before a
policeman showed up. I couldn’t believe it was taking so
long or [sic] an ambulance, anything.
[p. 22] Q. Do you know where the policeman had to
come from?
A. No.
Q. Do you know where the closest - did paramedics
come?
A. It was a normal orange and white square, you
know, ambulance truck type ambulance with two techni-
cians that came. They -
Q. Do you know if they were paramedics?
A. They acted like paramedics. They weren't like
firemen type paramedics that you see when the fire
department comes, but they had the same demeanor
about them and pulled some equipment out of the ambu-
lance. Did the same thing, checked for pulse, checked for
SER ee HOLS
SA 37
breath, and then they put a - looked like an EKG, small
portable EKG machine out on the street. Hooked up the
wires to the victim in the street to try to find, I believe, a
heartbeat. You know, it was iust a flat line, and they, said.
she was deceased at that point.
Q. Do you know if - was there ever a blue and
white ambulance that came to the scene?
A. I don’t remember a blue and white ambulance.
In my mind I see an orange and white ambulance but
maybe that’s because I see those all
7 + *
EXHIBIT B
Page 1 of 2 VOLUNTARY STATEMENT 940927-1625
THIS PORTION TO BE COMPLETED BY OFFICER.
Specific Crime
Fatal Accident
Date Occurred
9-27-94
Time Occurred
1916
Location of Occurrence
W. Lake Mead East & Ridgemoor [X] City
{ ] County
Can You Identify the Suspect? [ ] Yes
[X] No
SA 38
Name _ (Last/First/ Middle)
Olsen Susie S.
Date of Birth
6-28-52
Social Security #
562-84-3019
Race Sex Height Weight Hair Eyes
& F oo 145 Bl Blu
Work Schdl. (Hours) (Days Off)
varies 1
Business / School
Clark County S
Residence Address: (Number & Street)
2313 Huntsville
Bidg./Apt.# City State Zip Code
Las Vegas NV 89134
Res. Phone: 363-7142
Bus. Phone:
Bus. (Local) Address: (Number & Street)
varies
Bldg./Apt.# City State Zip Code
Occupation Depart Date (if visitor)
Best place to contact you during the day
Sub services
Best time to contact you during the day
5-6 PM afternoons
DETAILS
As I came up to Lake Mead (turning right from
Ridgemoor) I saw the woman on the dark bike
ae tee
SA 39
(no strobe or lights) swerving a lot because she
was trying to negotiate turning to cross the
street going uphill, plus she had a bag of groc-
eries she was carrying. She had trouble getting
any speed to cross. She may not have seen the
Explorer coming toward her because she had a
headset on. The Explorer (driver) certainly
could not see her until it was too late because
the road was curving - trees blocked vision in
mid — on divider - as driver came up going no
faster than speed limit - I noted that because
before impact I realized the Explorer would col-
lide with bike rider before it happened. I looked
in my rear view mirror & saw the Explorer
impact & brake & the bicyclist slide off Explorer.
I HAVE READ THIS STATEMENT AND I AFFIRM TO
THE TRUTH AND ACCURACY OF THE FACTS CON-
TAINED HEREIN. THIS STATEMENT WAS COMPLETED
AT (LOCATION) Accident Scene
ON THE 27TH DAY OF SEPT AT 9:30 (AM/PM) 1994
Witness Officer: Illegible #1937
(SIGNATURE)
Witness Officer: Illegible #1937
(ILLEGIBLE)
/s/ Susie Olsen
SIGNATURE OF PERSON
GIVING STATEMENT
DN
SA 40
DISTRICT COURT
CLARK COUNTY, NEVADA
Case No. A339613
Dept No. XIII
DOCKET NO. “G”
DEPOSITION OF JANET KATHLEEN WAGNER
November 7, 1995
MICHAEL C. DELEW, individually; MICHAEL C.
DELEW, as Special Administrator of the Estate of ERIN
RAE DELEW; H. ROY MAYBERRY; and VICKIE MAY-
BERRY,
Plaintiffs,
vs.
JANET KATHLEEN WAGNER, and DOES I through V
inclusive, and ROE CORPORATIONS V through X,
Defendants.
APPEARANCES:
For the Plaintiffs: FOLEY & JONES
By Daniel T. Foley, Esq.
302 East Carson Avenue
Suite 901
Las Vegas, Nevada 89101
(702) 383-9852
HOLLAND & HART
By Timothy M. Rastello, Esq.
P.O. Box 8749
Denver, Colorado 80201-8749
(303) 395-8200
=
§
+
.
.
*
x
=
5
*
¥
%
4
ry
SA 41
For the Defendant EDWARDS & HALE
Wagner: By Keith Edwards, Esq.
415 South Sixth, Suite 300
Las Vegas, Nevada 89101
(702) 382-1414
. 114] A From my cellular phone.
And where were you standing?
In the street.
Okay. In front of your vehicle?
I believe so, yes.
Between your vehicle and Erin?
A Near both the truck and her. I can’t say between
the two.
Q How many people appeared at the scene shortly
after the collision occurred?
A I don’t know exactly. I would say within the first
few minutes there were maybe five or six people there.
Q Okay. And this woman that you took the phone
from, can you describe her for me?
A No, I don’t remember who it was that gave it to
me.
Q And did you take the phone right there and dial?
A After she gave the phone to me, I called my
husband at home.
Q And you called her from where - from that spot
where she -
SA 42
MR. EDWARDS: Counsel, you've asked this
four times. Four times. I can tell you exactly where she
was. You're not going to do this at trial, and you don't
have a right to do it here.
MR. FOLEY: Sure he does.
[p. 123] A Within the year previous?
MR. EDWARDS: She - go ahead.
A Maybe once or twice.
Q (BY MR. RASTELLO) Okay. When did you first
see your husband arrive at the scene?
A I don’t know what time it was. Again, I would
guess that it was probably about 15 minutes after the
accident occurred.
Q And he drove his Monte Carlo from the house to
the scene somewhere, but you don’t know where he
parked?
A Right. I know that he was parked on the street,
and I believe he was parked towards the median. My
guess would be that he was on the median in the west-
bound lane, but I just can’t specifically picture it being
there.
Q And the westbound lane would have been in the
— pointed the same direction as your truck?
A Right.
Q Somewhere behind it?
ae Me tee cane cn ae oa ee
SA 43
A Right.
Q Had any police officers arrived at the time you
first saw your husband?
MR. EDWARDS: She's already answered that.
A_ I don’t remember.
Q (BY MR. RASTELLO) When you saw your hus-
band, what did you do?
* * *
[p. 125] Q Well, what’s your best memory?
A I just remember various people showing up at the
accident scene. Again, I know there was an ambulance
there and police were there, but I really was not cogni-
zant of the sequence of events or the series of events or
what was going on around me.
Q_ How long did you communicate with your hus-
band during that first physical communication with him?
A_ Idon’‘t even remember if there was a verbal com-
munication at that time.
Q_ But how long of a time period were you next to
one another?
A He was next to me most of the rest of the night.
Q_ Did he have his arm around you?
A At sometimes maybe. Not the entire night.
Q Okay. At some point in time did paramedics
arrive at the scene?
SA 44
A_ I again remember seeing an ambulance there. |
would assume there were paramedics there, But |
couldn’t say how many or positively that there was a
paramedic there.
Q Did your husband notice that - the odor of alco-
hol on your breath?
A Not that I'm aware of.
» * *
[p. 129] officer who asked me if I was injured or needed
some attention, and that was the extent of the exchange.
Q Can you describe this police officer for me?
A No, I don’t recall what he looked like.
Q White, black, yellow, or older?
A_ I wasn’t paying attention.
Q Did this police officer ask you for your driver's
license?
A Not that I recall, no. Not at that first initial con-
tact, in other words. I know at one point somebody did
ask me for my driver’s license. I don’t know if it was him
or another officer and, again, I don’t believe it was at that
initial contact.
Q Did any Metropolitan police officer attempt to -
to separate you from the scene of the collision or to
segregate you from other people at the scene?
A No. Not that I’m aware of.
Q And during your first communication with a uni-
formed Metropolitan police officer, the only thing you
SA 45
recall them asking or him asking was whether or not you
were okay?
A Yes.
Q What's the very next thing that you remember
happening after that?
[p. 130] A Just like I said, you know, several people
arriving. Additional police officers and highway patrol
troopers. You know, I was not doing anything in particu-
lar. It wasn’t any specific occurrence that I recall as hap-
pening in any sequence.
Q Well, why don’t you tell me generally what hap-
pened during the next two hours while you were at the
scene of the collision?
A I was just sitting near the street.
Q Where?
A You know answering - various places along the
curb. I was in and out of a couple of different cars. People
would coax me to sit down in a car or something. Again, I
was kind of walking just back and forth down the street,
you know, in a short area by where the accident occurred.
Occasionally somebody would ask me a question. That's
about it.
Q During the first two hours at the scene after the
collision, did any Metropolitan police officer attempt to
take a witness statement from you?
A Yes. There was an officer who asked me generally
what had happened, and I gave a statement to him. I
don’t know what time that was, but I do believe it was
within the first hour and a half or so.
SA 46
[p. 134] Q (BY MR. RASTELLO) Do you know the
reason Officer Wagner did not inform any other Metro-
politan police officer that you had been drinking?
MR. EDWARDS: Object. Instruct the witness
not to answer.
MR. FOLEY: You know, for the record, I think
she’s waived the privilege at least to a limited extent to
this issue given that she has now testified about a com-
munication she had with her husband which was not
objected to when she told him that she had been drink-
ing.
MR. EDWARDS: Appreciate your ruling on it.
MR. FOLEY: I didn’t rule on it, Keith, or were
you just trying to be cute?
Q (BY MR. RASTELLO) After your husband arrived
at the scene, is it fair to say that you and he were
physically together for the next hour and a half at the
scene of the collision?
A We were - you know, at times close together and
at times we weren't. Again, I was walking around and up
and down and not in one stationary place, and so at times
he was next to me and at times he was, you know, maybe
several feet or yards away.
Q During the first two hours after the traffic colli-
sion, what did you observe the
* * *
SA 47
[p. 141] A No, I don’t.
Q Do you know if your husband called Sergeant
Albert that night?
MR. EDWARDS: I'll object. Instruct the witness
not to answer.
MR. RASTELLO: That's really — I’m not going
to argue with you.
Q (BY MR. RASTELLO) Did your husband call Ser-
geant Albert that night?
MR. EDWARDS: Object. Instruct the witness
not to answer.
MR. RASTELLO: Keith, that has nothing to do
with the communication between married people.
MR. FOLEY: It really doesn’t. It was something
communicated by Albert to Mrs. Wagner.
MR. RASTELLO: It could have been something
she observed. Don’t be an obstructionist. We’re just going
to spend a lot of time and money for very little gain by
both sides, including your client.
MR. EDWARDS: Why don’t you ask her if she
knows how Sergeant Albert found out about the accident.
Q (BY MR. RASTELLO) Sure. I’ll ask that.
A Do I know how Sergeant Albert found out about
the accident?
Q Right.
A_ I know now that my husband called him and [p.
142] I think it was because he used my cellular phone,
SA 48
although I’m really not sure. But I have gathered that,
that he called him at some point. I think he - my husband
may have told me that he called him.
Q Okay. And did Sergeant Albert come to the
scene?
A Yes.
Q And did you speak with him?
A At various points in the night, I did talk to him,
Q What did you talk to Sergeant Albert about?
A Nothing in particular. I mean I wasn’t talking
much about anything. You know, like I said, I’m sure he
asked me how I was or, you know, if I wanted something
to eat or drink and that was the extent of it.
Q Did Sergeant Albert ask you if you had been
drinking?
A No.
Q Did you tell Sergeant Albert that you had been
drinking?
A No.
Q Did you see your husband speaking with Ser-
geant Albert outside of your presence that evening?
A He - he might have. I don’t recall.
+ * +
SA 49
[p. 145] were driving, from what I gathered.
Q
Q
Any other car, patrol car?
Yes. I sat in a patrol car.
Just one patrol car or more than one?
Once or twice. I don’t recall if it was the same car
Okay. Do you know whose patrol car it was?
No.
How is it that you ended up sitting in a patrol
car? What led to sitting in that patrol car?
A
It was sometime after the accident had occurred,
and I asked if I could go home to use the restroom, and
they drove me to the house to do that.
Q
A
Q
A
Q
A
Q
A
Q
Okay. Who drove you to the house?
I don’t know who they were.
Was your husband with you?
Yes.
And where were you sitting?
In the back seat of the car.
And where was your husband sitting?
In the back seat of the car.
And were there two officers in the front?
SA 50
A Yes.
Q And you don’t know which officers they were?
* + *
SA 51
DISTRICT COURT
CLARK COUNTY, NEVADA
Case No. A339613
Dept. No. XIII
DOCKET NO. “G”
DEPOSITION OF JANET KATHLEEN WAGNER
November 7, 1995
MICHAEL C. DELEW, individually; MICHAEL C.
DELEW, as Special Administrator of the Estate of ERIN
RAE DELEW; H. ROY MAYBERRY; and VICKIE MAY-
BERRY,
Plaintiffs,
Vs.
JANET KATHLEEN WAGNER, and DOES I through V
inclusive, and ROE CORPORATIONS V through X,
Defendants.
APPEARANCES:
For the Plaintiffs: FOLEY & JONES
By Daniel T. Foley, Esq.
302 East Carson Avenue
Suite 901
Las Vegas, Nevada 89101
(702) 383-9852
HOLLAND & HART
By Timothy M. Rastello, Esq.
P.O. Box 8749
Denver, Colorado 80201-8749
(303) 295-8200
SA 52
For the Defendant
Wagner: EDWARDS & HALE
By Keith Edwards, Esq.
415 South Sixth, Suite 300
Las Vegas, Nevada 89101
(702) 382-1414
* * *
[p. 114) A From my cellular phone.
And where were you standing?
In the street.
Okay. In front of your vehicle?
I believe so, yes.
Oo >? © F A
Between your vehicle and Erin?
A Near both the truck and her. I can’t say between
the two.
Q How many people appeared at the scene shortly
after the collision occurred?
A I don’t know exactly. I would say within the first
few minutes there were maybe five or six people there.
Q Okay. And this woman that you took the phone
from, can you describe her for me?
A No, I don’t remember who it was that gave it to
me.
Q And did you take the phone right there and dial?
A After she gave the phone to me, I called my
husband at home.
BE ia alii hs: MS IY RR APT Rs
beac a
*
eS
SA 53
Q And you called her from where - from that spot
where she -
MR. EDWARDS: Counsel, you've asked this
four times. Four times. I can tell you exactly where she
was. You're not going to do this at trial, and you don’t
have a right to do it here.
MR. FOLEY: Sure he does.
* + *
[p. 123] A Within the year previous?
MR. EDWARDS: She - go ahead.
A Maybe once or twice.
Q (BY MR. RASTELLO) Okay. When did you first
see your husband arrive at the scene?
A I don’t know what time it was. Again, I would
guess that it was probably about 15 minutes after the
accident occurred.
Q And he drove his Monte Carlo from the house to
the scene somewhere, but you don’t know where he
parked?
A_ Right. I know that he was parked on the street,
and I believe he was parked towards the median. My
guess would be that he was on the median in the west-
bound lane, but I just can’t specifically picture it being
there.
Q And the westbound lane would have been in the
— pointed the same direction as your truck?
A Right.
SA 54
Q Somewhere behind it?
A Right.
Q Had any police officers arrived at the time you
first saw your husband?
MR. EDWARDS: She’s already answered that.
A I don’t remember.
Q (BY MR. RASTELLO) When you saw your hus-
band, what did you do?
[p. 125] happened next.
Q Well, what’s your best memory?
A I just remember various people showing up at the
accident scene. Again, I know there was an ambulance
there and police were there, but I really was not cogni-
zant of the sequence of events or the series of events or
what was going on around me.
Q How long did you communicate with your hus-
band during that first physical communication with him?
A I don’t even remember if there was a verbal com-
munication at that time.
Q But how long of a time period were you next to
one another?
A He was next to me most of the rest of the night.
Q Did he have his arm around you?
A At sometimes maybe. Not the entire night.
SA 55
Q Okay. At some point in the time did paramedics
arrive at the scene?
A_ I again remember seeing an ambulance there. |
would assume there were paramedics there. But |
couldn’t say how many or positively that there was a
paramedic there.
Q_ Did your husband notice that - the odor of alco-
hol on your breath?
A Not that I’m aware of
* * *
[p. 129] officer who asked me if I was injured or needed
some attention, and that was the extent of the exchange.
Q Can you describe this police officer for me?
A No, I don’t recall what he looked like.
Q White, black, yellow, or older?
A_ I wasn’t paying attention.
Q Did this police officer ask you for your driver’s
license?
A_ Not that I recall, no. Not at that first initial con-
tact, in other words. I know at one point somebody did
ask me for my driver's license. I don’t know if it was him
or another officer and, again, I don’t believe it was at that
initial contact.
Q | Did any Metropolitan police officer attempt to -
to separate you from the scene of the collision or to
segregate you from other people at the scene?
SA 56
A No. Not that I'm aware of.
Q And during your first communication with a uni-
formed Metropolitan police officer, the only thing you
recall them asking or him asking was whether or not you
were okay?
A Yes.
Q What's the very next thing that you remember
happening after that?
[p. 130] A Just like I said, you know, several people
arriving. Additional police officers and highway patrol
troopers. You know, I was not doing anything in particu-
lar. It wasn’t any specific occurrence that I recall as hap-
pening in any sequence.
Q Well, why don’t you tell me generally what hap-
pened during the next two hours while you were at the
scene of the collision?
A_ I was just sitting near the street.
Q Where?
A You know answering - various places along the
curb. I was in and out of a couple of different cars. People
would coax me to sit down in a car or something. Again, I
was kind of walking just back and forth down the street,
you know, in a short area by where the accident occurred.
Occasionally somebody would ask me a question. That's
about it.
Q During the first two hours at the scene after the
collision, did any Metropolitan police officer attempt to
take a witness statement from you?
oS lS oy ae ae og) :
SA 57
A Yes. There was an officer who asked me generally
what had happened, and | gave a statement to him. |
don’t know what time that was, but I do believe it was
within the first hour-and-a half or so
* . *
[p. 145] were driving, from what I gathered.
Q Any other car, patrol car?
A Yes. I sat in a patrol car.
Q Just one patrol car or more than one?
A Once or twice. I don’t recall if it was the same car
or not.
Q Okay. Do you know whose patrol car it was?
A No.
Q How is it that you ended up sitting in a patrol
car? What led to sitting in that patrol car?
A It was sometime after the accident had occurred,
and I asked if I could go home to use the restroom, and
they drove me to the house to do that.
Okay. Who drove you to the house?
I don’t know who they were.
Was you husband with you?
Yes.
And where were you sitting?
Awe Oo >. oO
In the back seat of the car.
0? Ce
SA 58
And where was your husband sitting?
In the back seat of the car.
And were there two officers in the front?
Yes.
And you don’t know which officers they were?
* * *
SA 59
KEITH EDWARDS, ESQ.
Nevada Bar No. 002299
EDWARDS, HALE, STURMAN & ATKIN, LTD.
415 South Sixth Street, #300
Las Vegas, NV 89101
(702) 382-1414
Attorney for Defendant
JANET KATHLEEN WAGNER
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
MICHAEL C. DELEW, individually; )
MICHAEL C. DELEW, as Special )
Administrator of the Estate of ERIN )
RAE DELEW; H. ROY MAYBERRY; )
and VICKIE MAYBERRY, )
nee ) Case No.:
ne ) CV-5-97-00090-
v. ) PMP(LRL)
~"
JANET KATHLEEN WAGNER, LAS
VEGAS METROPOLITAN POLICE ) DEFENDANT
WILLIAM JOHNSON, OFFICER
WILLIAM SMITH, OFFICER KEITH
BOWERS, OFFICER DAVID
WAGNER AND OFFICER GREG
GOEN, SERGENT [sic] WILLIAM
ADAMSON, SERGEANT HARVEY
DEPARTMENT, STATE OF ) ee
NEVADA, EX REL., NEVADA ) Sean
HIGHWAY PATROL, LIEUTENANT ) WER’
EDWARD JENSEN, SERGENT [sic] ) SLAINTIFES’
RICHARD WOMACK, SERGEANT ? BIEGEITION
CURTIS ALBERT, SERGENT [sic] ) OF WAGNER'S
THOMAS HARMON, DETECTIVE . MOTION TO
RICHARD HART, DETECTIVE ) DISMISS
)
)
)
)
)
, SRS Ser Wy BS <a
SA 60
WEATHERFORD, TROOPER
JOSEPH A. SMITH, TROOPER
GARTH GARDNER, TROOPER
JOSEPH WYNGARD AND
TROOPER JAMES BRANNUM,
DOES I through XX inclusive,
and ROE CORPORATIONS
XX THROUGH XXX,
Defendants.
mee eee eee ee ee”
COMES NOW, Defendant, JANET KATHLEEN WAG-
NER, by and through her attorneys, EDWARDS, HALE,
STURMAN & ATKIN, Ltd., and submits the following
rebuttal in support of her Motion to Dismiss.
I.
INTRODUCTION
There are three issues are [sic] presented by the
Plaintiffs Complaint in this action:
(1) can private citizens be joined in a 42 USC §1983
action for conspiracy when there was no “color of law”
involved in the wrongful death?
(2) can the plaintiff state a cause of action for 42 USC
§1983 after the plaintiff has already suffered her injury/
death?
(3) can the plaintiffs split their causes of action and
bring a state wrongful death action and file a separate
action under 42 USCA § 1983?
ARGUMENT
The 42 USCA § 1983 Action
Federal Court jurisdiction has been asserted in this
case pursuant to 42 USC § 1983, 42 U.S.C. @[sic] 1983
provides:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any
State or Territory, subjects, or causes to be sub-
jected, any citizen of the United States or other
person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immu-
nities secured by the Constitution and laws,
shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding
for redress.
In this case the plaintiffs have sued JANET WAGNER in
state court for wrongful death.! Now they are attempting
to bring a second action against her for violation of the
plaintiffs decedent’s civil rights by conspiring with the
investigating officers and agencies in the investigation of
the accident which caused ERIN RAE DELEW’s death.
Not only have the plaintiffs attempted to split their
causes of action against the Defendant Janet Wagner, but
they seek jurisdiction under a statute which clearly does
not apply to a private citizen. Complaint { 25.
42 U.S.C. @[sic] 1983 (1981 & Supp. 1992). By its
terms, @[sic] 1983 applies only to individuals
1 Delew v. Wagner, case # A339613 was filed November 10,
1994 (45 days after the accident in which Erin Delew died) and is
set for trial to commence in Dept. II] on November 10, 1997.
SA 62
5 acting “under color” of law. In other words, a
3 defendant cannot be held liable under @(sic]
5 1983 unless his actions can be “fairly attributa-
% ble to the state.” Lugar v. Edmondson Oil Co.,
457 U.S. 922, 73 L. Ed. 2d 482, 102 S. Ct. 2744
(1982). In Drum v. Nasuti, 648 F. Supp. 888, 897
(E.D. Pa. 1986), aff’d mem, 831 F.2d 286 (3d Cir.
1987) (quoted in Shipley v. First Fed. S & L
Ass'n of Delaware, 703 F. Supp. 1122, 1127 (D.
Del. 1988)), the court stated:
the requirement of action under color of law
is satisfied . .. when a private person will-
fully participates in joint action with a state
official. . . . Thus, [to survive the defen-
dant’s motion for summary judgment,]
plaintiff must demonstrate a genuine issue
of material fact that there existed between
the private defendant and the state official
an understanding, agreement, or conspiracy
to deprive the plaintiff of a federal right. He
must show a genuine factual issue of a com-
bination, agreement, or understanding
among the defendants. . . . These [sic] must
also be a genuine factual issue that the
defendants plotted, planned, or conspired
together to carry out the chain of events.
Dicola v. Fulmele, civil action No. 93-0263 (E.D. PA. 1994).
(Plaintiffs must allege that the defendant’s conduct was
taken under color of state law Vasquez v. Hernandez, 60
F.3d 325, 328 (7th Cir. 1995), reh’g denied, cert. denied,
134 L. Ed. 2d 648, 116 S. Ct. 1545, 1996.)
The plaintiffs must not only show some conspiracy
between the private citizen and the state official, but they
must also demonstrate “that the defendants plotted,
planned, or conspired together to carry out the chain of
SA 63
events.” Those events must be actions fairly attributable
to the state. Finally, the party asserting the constitutional
right must have been living at the time that her rights
were breached. Whitehurst v. Wright, 592 F.2d 834, 840 (5th
Cir. 1979); Guyton v. Phillips, 606 F.2d 248 (9th Cir. 1979)
(“the Civil Rights Act, 42 U.S.C. @@[sic] 1983 and 1985,
does not provide a cause of action on behalf of a deceased
based upon alleged violation of the deceased's civil rights
which occured after his death.”).
In this case the decedent rode her bicycle into the
path of the vehicle operated by JANET WAGNER. She
was struck and the plaintiffs have attempted to create an
[sic] question of fact concerning whether or not she was
alive during the accident investigation (in an effort to
assert that her constitutional rights were violated by the
alleged conspiracy surrounding the investigation.2) The
formal pronouncement of death apparently did not occur
until 9:30 p.m. However, the plaintiffs face something of a
dilemma (at least in one circuit); because “the Civil
Rights Act, 42 U.S.C. 1983 and 1985, does not provide a
cause of action on behalf of a deceased based upon
alleged violation of the deceased’s civil rights which
occured after his death.” Guyton v. Phillips, 606 F.2d 248
* The plaintiffs argument that Erin Delew’s constitutional
right to access to the courts was violated by the conspiracy
between the investigating officers suggests that at some time
she was going to seek redress through the courts and that the
conspiracy affected her ability to unimpaired access to the
courts. The fact that her death occurred before or
contemporaneously with the investigation suggests that such an
argument is only of academic interest and has no real
application in this case.
SA 64
(9th Cir. 1979) but “the victims of a cover-up are the
decedent's survivors, not the decedent himself” Gibson v.
City of Chicago, 910 F.2d 1510, 1523 (7th Cir. 1990), the
plaintiffs must either acknowledge that Ms. Delew died
before the alleged conspiracy or they must withdraw any
personal claim of a conspiracy. The Ninth Circuit has not
recognized a cause of action for the survivors of a victim
to a “cover up” after a decedent's death. Hence the plain-
tiffs argue that ERIN DELEW was alive during the inves-
tigation. The issue can be resolved through limited
discovery should it become necessary.
The cases which deal with the right to bring an action
for a police conspiracy to cover up a death seem to
involve cases in which the police were actually culpable
for the death. See generally Crowder v. Sinyard, 884 F.2d
804, 811 (Sth Cir. 1989), cert. denied, 496 U.S. 924, 110 L.
Ed. 2d 638, 110 S. Ct. 2617 (1990); Whitehurst v. Wright,
supra; Guyton v. Phillips, 606 F.2d 248 (9th Cir. 1979); Bell
v. City of Milwaukee, 746 F.2d 1205, 1264 (7th Cir. 1984).
This case calls into question several issues which are
somewhat unique and which challenge the very purpose
for which § 1983 was enacted. Historically § 1983 was
passed to provide a remedy to individuals who were
subjected to harassment and deprivation of rights by
governmental officers and agencies. Monroe v. Pape, 365
U.S. 167 at 187, 81 S. Ct. 473 at 484, 5 L. Ed. 2d 492 (1961).
3 Section 1979 came onto the books as @[sic] 1 of the Ku
Klux Act of April 20, 1871. 17 Stat. 13. It was one of the means
whereby Congress exercised the power vested in it by @[sic] 5 of
the Fourteenth Amendment to enforce the provisions of that
SA 65
The unique feature of this case is that the plaintiffs
are attempting to bring a § 1983 conspiracy case based on
Amendment. n3 Senator Edmunds, Chairman of the Senate
Committee on the Judiciary, said concerning this section:
“The first section is one that I believe nobody
objects to, as defining the rights secured by the
Constitution of the United States when they are
assailed by any State law or under color of any State
law, and it is merely carrying out the principles of the
civil rights bill, n4 which has since become a part of
the Constitution,” n5 viz., the Fourteenth
Amendment. Its purpose is plain from the title of the
legislation, “An Act to enforce the Provisions of the
Fourteenth Amendment to the Constitution of the
United States, and for other Purposes.” 17 Stat. 13.
Allegation of facts constituting a deprivation under
color of state authority of a right guaranteed by the
Fourteenth Amendment satisfies to that extent the
requirement of R. S. @[sic] 1979. See <=17> Douglas v.
Jeannette, 319 U.S. 157, 161-162. So far petitioners are
on solid grounds. For the guarantee against
unreasonable searches and seizures contained in the
Fourth Amendment has been made applicable to the
States by reason of the Due Process Clause of the
Fourteenth Amendment. Wolf v. Colorado,
338 U.S. 25; Elkins v. United States, 364 U.S. 206, 213.
II.
There can be no doubt at least since «=20> Ex parte Virginia, 100
U.S. 339, 346-347, that Congress has the power to enforce
provisions of the Fourteenth Amendment against those who
carry a badge of authority of a State and represent it in some
capacity, whether they act in accordance with their authority or
misuse it. See Home Tel & Tel. Co. United States v. Classic, 313
U.S. 299. We conclude that it did so intend.
SA 66
an inadequate or deceptive police investigation (inten-
tionally interfering with Plaintiff’s right of meaningful
access to courts). The plaintiffs do not claim that any
other civil right has been violated. It is not alleged that
the police were involved in causing the death of ERIN
RAE DELEW. It is not alleged that any of the plaintiffs
were deprived of rights guaranteed under the first,
fourth, fifth, eighth or fourteenth amendments to the
constitution. There is no wrongful death action against
the governmental agencies — that cause of action has been
split off and filed only against the DEFENDANT JANET
WAGNER.
Although there is some divergence between the var-
ious circuits* the case of Andrews v. Fowler, 98 F.3d 1069
(8th Cir. 1996) seems to deal with that issue. In that action
the plaintiff complained, among other things, that the
sexual assault committed against her was not properly
investigated. (It was alleged that the rape had been com-
mitted by a police officer). In denying relief under § 1983
the court observed:
* The Fifth Circuit Court of Appeals has a number of cases
(see Plaintiffs’ brief) in which it attempts to define the
constitutional right of “access to the courts.” The right was
originally recognized in criminal cases in which prisoners were
to provided [sic] certain minimal equipment to assist them in
gaining access to the courts. It subsequently was recognized as
an infringement in a civil case when the police failed to advise a
family of the facts surrounding the death of their son. See also
Foster v. City of Lake Jackson, 28 F.3d 425 (5th Cir. 1994). Since that
time there have been numerous actions to expand the “access to
the courts” argument to include “meaningful access to the
courts.”
SA 67
While Price’s failure to investigate the rape may
have violated state law and common sense, it
did not rise to the level of a separate constitu-
tional violation of Andrews’ rights. She made no
showing that the alleged failure to investigate
was on account of her gender so the claim does
not implicate equal protection. See Gomez v.
Whitney, 757 F.2d 1005, 1006 & n.1 (9th Cir.
1985) (stating “we can find no instance where
the courts have recognized inadequate investi-
gation as sufficient to state a civil rights claim
unless there was another recognized constitu-
tional right involved”).
It is pointed out in Crowder v. Sinyard, 884 F.2d 804 (5th
Cir. 1989) that § 1983 actions were primarily designed to
deal with overt conduct or action by a governmental
agent or agency; see also general discussion Jenkins v.
Meyers 338 F.Supp. 383 (ND Ill. 1972) which distinguishes
between a § 1983 willful acts done under color of state
lew and the unintentional common law tort resulting
from the alleged negligence not cognizable under § 1983.
The Fifth Circuit Court of Appeals has taken a broader
view of cases involving “investigative coverups.” How-
ever, even in that circuit the cases which recognize such a
right seem to be connected with other governmental mis-
conduct. Love v. Bolinger, 927 F. Supp. 1131 (SD Ind. 1996)
in which victim of state-occasioned killing, and/or his
survivors, asserted rights violated by a state-occasioned
cover-up; Means v. City of Chicago, 535 F. Supp. 455 (ND
Ill. 1982) conspiracy consisting of the false arrest,
unjustified shooting, failure to provide medical attention
and attempting to cover up the alleged events after the
fact; Ryland v. Shapiro, 708 F.2d 967 (Sth Cir. 1983).
SA 68
This case appears to present some rather unique
issues regarding the potential liability of police officers
and private citizens arising out of the investigation of a
vehicle accident. Plaintiffs have quoted a number of cases
from the Fifth Circuit Court of Appeals to suggest that an
estate may bring an action under § 1983 on behalf of the
deceased. However, the plaintiff has done nothing to
distinguish the Ninth Circuit Court of Appeals cases
which hold that there is no constitutional right “to have a
full and fair police investigation into violence done
against themselves or their children.” Gomez v. Whitney,
757 F.2d 1005 (9th Cir. 1984); see also Estate of Cartwright
v. City of Concord, 618 F.2d Supp. 722 (ND CA 1985), aff’d
856 F.2d 1437 (9th Cir. 1988).
Janet Wagner’s Rights Were Compromised
By The Investigation
The suggestion that JANET WAGNER was a co-con-
spirator of the police investigation is ludicrous. No one
can point to any “conversation or action” between Mrs.
Wagner and the investigating officers that reflected an
agreement between the officers and her. In fact, had there
been such an agreement Mrs. Wagner certainly would
never have been subjected to either a field sobriety test or
a blood test.
The plaintiffs’ desire to implicate Mrs. Wagner in the
police investigation ignores the undisputed facts in this
case. JANET WAGNER had the right to a properly con-
ducted investigation which included freedom from
improper chemical testing without probable cause. Mrs.
Wagner was not properly subjected to any inquiry until
SA 69
some “probable cause” existed to suggest that she had
been using alcohol. After “probable cause” existed she
could then be given a field sobriety test (HGN). Until she
had been administered and failed a field sobriety test she
should not have been subjected to any chemical testing.
Each of the officers at the scene of the accident was asked
what contact they had with JANET WAGNER and if they
smelled her breath. Officer Adamson indicated that he
was advised upon his arrival at the accident scene that an
officer had smelled alcohol on Mrs. Wagner’s breath.
Adamson deposition pp. 73-74, Officer Alpert testified:
Dave Wagner didn’t know anything about
her drinking. I had been sitting next to her for
two and a half to three hours and never smelled
any alcohol on her, and I was sitting shoulder to
shoulder with her.
Q. Did you attempt to smell any alcohol on
her?
A. To be honest with you, it never — the
thought never entered my mind, but when
you're sitting that close to somebody if they’ve
been drinking - and I’m a non-drinker — you can
normally smell it. And I was as surprised as
Dave was. Depo pp. 55-56
Q. Did you subsequently come to learn that
she had been drinking?
A. Yes.
Q. How did you learn that?
A. When she was going down for the blood
alcohol test and Dave - well, the NHP officer
was standing right there, and Dave had asked,
did she pass her field sobriety? And he had said,
a
we
P }
ns
a
ou
tel
va)
SA 70
yes, she did — or did she fail it? Either way she
passed her test - I don’t remember the exact
words he used - and that they had requested a
blood alcohol test from her. And Dave had
asked why. And the trooper had said, she had
had a beer. And that’s when I learned of it.
Alpert Deposition p. 67.
Officer Joseph Smith testified that Officer Wyngard
thought he smelled alcohol on Mrs. Wagner’s breath.
Officer Smith then performed a field sobriety test (hori-
zontal gaze nystagmus or HGN) on Mrs. Wagner.
Q. Okay. Going back to Mrs. Wagner and the
HGN test, did you perform an HGN test upon
her?
A. Yes, I did.
Q. And what did you observe?
A. Nothing.
Q. You made no observations?
A. Well, her — I mean as far as the six clues or
points that you look for, there weren’t any.
Besides the eyes being bloodshot and watery
from crying, I didn’t see any nystagmus what-
soever or smell any order of alcohol coming
from her. J. Smith Deposition pp. 115-116.
Officer Wyngard testified, “I smelled this light order
unknown alcoholic beverage on her, about her person.
(Wyngard deposition p. 50). He also testified that he is
“pretty good” at detecting the order of alcohol; that he
can smell it when no one else can. Id. at 51. Officer P.
Smith was the first Metro officer to arrive at the scene
and he testified that he was within 18 to 24 inches of Mrs.
Wagner when he interviewed her for her account of the
SA 71
accident and that he did not detect any odor of alcohol. P.
Smith Deposition p. 85. The other officers were not
involved with Mrs. Wagner and never had occasion to
speak with her or get close enough to smell her breath.
Until Officer Wyngard smelled a “light odor of alco-
hol about her person” there was no “probable cause” for
a field sobriety test. Once Mrs. Wagner passed the field
sobriety test there was nothing to justify a blood test.
Even at that, if a blood test was going to be performed it
had to be done pursuant to the statute which requires:
484.379. Driving under the influence of intox-
icating liquor or controlled substance: Unlawful
acts; affirmative defense
1. It is unlawful for any person who:
(a) Is under the influence of intoxicat-
ing liquor;
(b) Has 0.10 percent or more by
weight of alcohol in his blood; or
(c) Is found by measurement within 2
hours after driving or being in actual physical
control of a vehicle to have 0.10 percent or more
by weight of alcohol in his blood, to drive or be
in actual physical control of a vehicle on a high-
way or on premises to which the public has
access.
2. It is unlawful for any person who is an
habitual user of or under the influence of any
controlled substance, or is under the combined
influence of intoxicating liquor and a controlled
substance, or any person who inhales, ingests,
applies or otherwise uses any chemical, poison
or organic solvent, or any compound or combi-
nation of any of these, to a degree which renders
SA 72
him incapable of safely driving or exercising
actual physical control of a vehicle to drive or be
in actual physical control of a vehicle on a high-
way or on premises to which the public has
access. The fact that any person charged with a
violation of this subsection is or has been enti-
tled to use that drug under the laws of this state
is not a defense against any charge of violating
this subsection.
3. If consumption is proven by a prepon-
derance of the evidence, it is an affirmative
defense under paragraph (c) of subsection 1 that
the defendant consumed a sufficient quantity of
alcohol after driving or being in actual physical
control of the vehicle, and before his blood was
tested, to cause the alcohol in his blood to equal
or exceed 0.10 percent. A defendant who
intends to offer this defense at a trial or prelimi-
nary hearing must, not less than 14 days before
the trial or hearing or at such other time as the
court may direct, file and serve on the prosecut-
ing attorney a written notice of that intent.
Despite the fact that Mrs. Wagner’s use of alcohol was
within 15 minutes of the accident and despite the fact that
there was no probable cause to subject Mrs. Wagner to a
blood alcohol test and despite the fact that the test was
taken more than two hours after the accident, and despite
the fact that the results of the test showed a blood alcohol
level of 0.05% after the most recent intake had finally
entered the blood stream>. Mrs. Wagner’s rights were of
> At the time of the accident the alcohol which has been
drunk with [sic] 15 minutes was not in the blood stream, but
after three hours, despite the trauma of having hit a “darting
bicyclist” the most recently ingested alcohol had finally entered
the blood stream.
SA 73
secondary consideration to the investigating officers.
Although the investigating officers made mistakes during
the investigation those mistakes were to the detriment of
Mrs. Wagner and cannot form the basis for a conspiracy.
Splitting Actions
The plaintiffs seem to ignore this defendant's objec-
tion to having to defend two lawsuits. As was pointed
out (without opposition) in the original Motion to Dis-
miss the criteria for determining if the plaintiffs have
attempted to split their causes of action are:
1) whether separate actions brought arise out
of the same act, contract or transaction; 2) or
whether the parties, subject matter and evidence
necessary to sustain the claim are the same in
both actions. The word “transaction” has a
broad meaning. It has been defined as the aggre-
gate of all the circumstances which constitute
the foundation for a claim. It also includes all of
the facts and circumstances out of which an
injury arose. [Citations omitted].
The cases dealing with res judicata and the
splitting of a single cause of action apply the
same standard as the compulsory counterclaim
rule.
King Gen Contrs., Inc. v. Reorganized Church of Jesus Christ
of Latter Day Saints, 1991 Mo. App. LEXIS 444, (Court of
Appeals of Missouri, Western District, 1991). The action
against JANET WAGNER should have been asserted at
the time of the initial complaint. The attempt to now
bring a new separate cause of action is ill founded and
contrary to cited precedent.
oe
SA 74
Ill.
CONCLUSION
The plaintiffs have attempted to make a claim against
a private citizen under 42 USCA § 1983, but in so doing
have ignored the law in this circuit. Additionally, the
attempt to make Mrs. Wagner defend two separate law-
suits arising out of the same facts and circumstances is
improper. For the foregoing reasons it is respectfully
requested that this court grant DEFENDANT JANET
WAGNER’s Motion to Dismiss.
DATED this 17th day of March, 1997.
Respectfully Submitted,
By /s/ Keith Edwards
KEITH EDWARDS, ESQ.
Nevada Bar No. 002299
EDWARDS, HALE, STURMAN
& ATKIN, LTD.
415 South Sixth Street, #300
Las Vegas, Nevada 89101
Attorney for Defendant
JANET KATHLEEN WAGNER
:
j
4
d
SA 75
CERTIFICATE OF MAILING
I HEREBY CERTIFY that on the 17th day of March,
1997, I served DEFENDANT, JANET KATHLEEN WAG-
NER’S REPLY TO PLAINTIFFS’ OPPOSITION TO WAG-
NER’S MOTION TO DISMISS by depositing a true copy
thereof in the U.S. Mails, postpaid and addressed as
follows:
Walter R. Cannon, Esq.
RAWLINGS, OLSON, CANNON,
GORMLEY & DESRUISSEAUX
301 East Clark Ave., #1000
Las Vegas, Nevada 89101
Daniel T. Foley, Esq.
FOLEY & JONES, P.C.
302 East Carson Ave., #901
Las Vegas, Nevada 89101
Frankie Sue Del Papa
ATTORNEY GENERAL
Bridget A. Branigan, Esq.
-DEPUTY ATTORNEY GENERAL
Department of Motor Vehicles
and Public Safety
555 East Washington Ave., #3900
Las Vegas, Nevada 89101
/s/ Illegible
An employee of EDWARDS, HALE, STURMAN
& ATKIN, Ltd.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.