Gagnon v. Nevada

JEAN GAGNON Plaintiff, v. STATE OF NEVADA, ex rel., its DEPARTMENT OF PUBLIC SAFETY, HIGHWAY PATROL,BRIAN SANCHEZ, CHRIS PERRY, JACKIE MUTH, JAMES WRIGHT, JOHNand JANE DOES 1-10; ROE BUSINESS ENTITIESand CORPORATIONS 1-10; BLACK and WHITE COMPANIES 1-10, et al., Defendants.

2:13-cv-00528-JAD-PAL

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

August 24, 2015

Order Granting Defendants' Motion for Judgment on the Pleadings, Denying Plaintiff's Motion for Leave to Amend, Entering Judgment, and Dismissing Case [Docs. 75, 94]

This case springs from the power struggle for control over the Nevada Highway Patrol's K9 program in the late 2000s. I dismissed Jean Gagnon's original complaint with leave to amend his First Amendment-retaliation claim and his state-law civil-conspiracy claim. But Gagnon's amended complaint contains a retaliation claim, a civil conspiracy claim under federal law, and a new due-process/Peace Officer Bill of Rights claim. Defendants move for judgment on the federal civil-conspiracy and due-process claims because Gagnon did not have leave to plead them. They move for judgment on his retaliation claim because it is time-barred and because the facts of this case do not support this constitutional cause of action. Gagnon opposes the motion and asks for leave to amend his claim to add yet more facts to support his retaliation claim.

I find that Gagnon's amended complaint still fails to state a plausible First Amendment-retaliation claim because, despite my clear instructions when granting leave last time, he still has not identified a single protected communication that prompted the alleged retaliation. I dismiss Gagnon's federal civil conspiracy and due-process/Peace Officer Bill of Rights claims because they were filed without leave to amend. Finally, I deny Gagnon's belated request for leave. Even with his proposed additions to his First Amendment claim, he still fails to state a plausible claim. He also has not shown good cause to add these unauthorized claims nor demonstrated excusable neglect forrequesting leave months after the court-ordered deadline.

Background

The following facts are taken from Gagnon's amended complaint and must be taken as true.¹

A. The Battle for Control of the Nevada Department of Public Safety's K9 Program

In 2007, Jerald Hafen, then-Director of the Nevada Department of Public Safety, appointed Defendant Chris Perry, the Chief of Nevada Highway Patrol (NHP), to develop an implementation plan for a K9 drug program.² Unsatisfied with the results, Hafen reassigned the task to Gagnon.³ Angered and embarrassed, Perry vowed to destroy the K9 program and any other new programs implemented by Hafen.⁴

Over the course of the next three years, Perry and his confidantes sabotaged the Gagnon-developed K9 program. They ordered Gagnon not to work overtime, repeatedly interrupted the training program, failed to timely process purchase requests and K9 employee time sheets, deleted employment and training records, ordered Gagnon to attend a three-month command school out of state, and insisted that Gagnon be transferred to a different department.⁵ Despite defendants' efforts, the K9 program was a success and resulted in the interception of large quantities of illegal drugs and drug money.⁶ This only further angered defendants and strengthened their resolve to sabotage Gagnon and his program.⁷

On January 1, 2011, Hafen retired.⁸ Perry assumed Hafen's position and promptly began todismantle the K9 program.⁹ In late March 2011, Perry notified Gagnon that he had personally launched an internal investigation against him.¹⁰ Gagnon retired on March 28, 2011.¹¹

B. This litigation and the first round of dismissals

Gagnon filed this lawsuit on March, 27, 2013, against the State of Nevada (and its divisions, the NHP and DPS), the Las Vegas Metropolitan Police Department (Metro), and NHP Officers Perry and Sanchez.¹² Gagnon asserted claims for First Amendment retaliation, "citizens[']" Fourth Amendment violations by NHP, civil-conspiracy claims under both state law and 42 U.S.C. § 1985, a claim for slander or defamation, a § 1983 claim for failure to train, and claims for trespass, fraud, unjust enrichment, and RICO violations.¹³

Defendants¹⁴ promptly responded with a motion for judgment on the pleadings. In response, Gagnon abandoned—and conceded—the dismissal of the Fourth Amendment violation claim, the federal conspiracy claim, and the trespass claim.¹⁵ I dismissed with prejudice the claims for slander/defamation, fraud, unjust enrichment, § 1983 failure to train, and RICO violations.¹⁶ The First Amendment-retaliation claim and the state civil-conspiracy claims were dismissed without prejudice and with leave to amend.¹⁷ I strongly cautioned Gagnon that, to survive dismissal, his amended claims must be based on well-pled facts—not merely conclusions.¹⁸

C. The amended allegations

Despite having leave to amend his complaint only to replead the First Amendment-retaliation claim and his state-law civil-conspiracy claim, Gagnon filed an amended complaint with these three claims: (1) First Amendment Retaliation, (2) 42 U.S.C. 1985 Civil Conspiracy to Violate Civil Rights; and (3) Fourteenth Amendment Due Process/NRS 289 Peace Officer Bill of Rights.¹⁹ To his original First Amendment-retaliation claim, Gagnon added these factual allegations:

(1) In April 2011, Gagnon applied for a position at the police department in Ely, Nevada.²⁰ Perry told the hiring sheriff that Gagnon was a "back stabber" and should not be hired for the position.²¹

(2) In June 2013, Gagnon accepted a position with the Nevada Gaming Control Board (GCB).²² In November 2013, the GCB conducted a routine background investigation on Gagnon.²³ During the investigation, the defendants told the investigator—or conspired with one another to leak the information—that there had been an internal investigation against Gagnon while he was with the department.²⁴

Defendants again move for judgment on the pleadings.²⁵ They argue that, despite a second chance, Gagnon has still failed to plead a plausible First Amendment-retaliation claim and that he was never given leave to refile his abandoned federal conspiracy claim or leave to assert a new due-process/NRS Chapter 289 claim.²⁶ Gagnon opposed the motion²⁷ and—two months later (and three months after the deadline for amending pleadings expired)—Gagnon filed a motion for leave to file a second amended complaint.²⁸ The proposed second amended complaint contains the same claims as his first amended complaint but adds more facts purportedly to bolster his First Amendment-retaliation claim.²⁹

Discussion

A. Legal standards

"Judgment on the pleadings is properly granted when, taking all the allegations in the pleadings as true, the moving party is entitled to judgment as a matter of law."³⁰ "Analysis under Rule 12(c) is 'substantially identical' to analysis under Rule 12(b)(6) because, 'under both rules, 'a court must determine whether the facts alleged in the complaint, taken as true, entitle the plaintiff to a legal remedy.'"³¹ When considering a Rule 12(c) motion, the court may dismiss an insufficiently pled claim instead of granting judgment on it.³² In that case, the court has discretion to grant leave to amend unless it is clear that the deficiencies of the complaint cannot be cured by amendment.³³

B. Gagnon has not shown that he can state a plausible First Amendment-retaliation claim.

Defendants move for judgment on the pleadings on plaintiff's first cause of action—a civil rights claim under 28 U.S.C. § 1983 for retaliating against him for exercising his First Amendment right to free speech. They contend that the facts that give rise to this claim all occurred more than two years before Gagnon filed this lawsuit, so this claim is time-barred under the two-year statute of limitations.³⁴ To the extent it can be deemed timely, defendants argue that Gagnon has not pled facts to support most of the elements needed to state a First Amendment-retaliation claim.

Gagnon filed this action on March 27, 2013, so any conduct before March 27, 2011, is not actionable.³⁵ The vast bulk of the acts that form the basis for this claim occurred between 2002 and 2009.³⁶ Gagnon alleges that Perry informed him that he had launched an internal investigation against him in "late March 2011" and that Gagnon retired from NHP on March 28, 2011, as a result of the investigation and other acts by defendants.³⁷ Despite my specific instructions that Gagnon replead this claim with specific facts and dates, Gagnon has failed to do so.

In an effort to cure this statute-of-limitations problem, Gagnon offers two new allegations of retaliation that occurred after March 27, 2011. He alleges that when he applied for a job with the White Pine Sheriff's Office in April 2011, Perry "sought out" the hiring sheriff and discouraged him from hiring Gagnon, accusing him of being a "back stabber" who "could not be trusted" and "should not be hired."³⁸ And he alleges that, during a background investigation performed by Gagnon's current employer the GCB, defendants, "in continued retaliation and conspiracy with Perry andSanchez," disclosed Gagnon's internal-investigation file.³⁹ But even with these more contemporary retaliatory acts, Gagnon still fails to state a plausible First Amendment-retaliation claim because he has not alleged facts to show that he made a First Amendment-protected statement that attracted the retaliation.

1. Gagnon has not alleged facts to show he made a communication protected by the First Amendment.

The First Amendment shields a public employee from retaliation if he speaks as a private citizen on a matter of public concern.⁴⁰ Courts in this circuit employ a five-part test to determine whether a plaintiff has stated a claim for First Amendment-retaliation:

(1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; (3) whether the plaintiff's protected

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