WILSON VS. LAS VEGAS METRO. POLICE DEP'T , 2021 NV 70 ( 2021 )

137 Nev., Advance Opinion 70
IN THE SUPREME COURT OF THE STATE OF NEVADA
CURTIS WILSON, AN INDIVIDUAL, No. 81940
Appellant,
vs.
LAS VEGAS METROPOLITAN POLICE
DEPARTMENT, A GOVERNMENTAL
AGENCY; POLICE OFFICER E. FILED
VONJAGAN, BADGE NO. 16098, AN
EMPLOYEE OF THE METROPOLITAN NOV 1 8 2021
POLICE DEPARTMENT; AND POLICE
OFFICER TENNANT, BADGE NO.
9817, AN EMPLOYEE OF THE
METROPOLITAN POLICE
DEPARTMENT,
Respondents.
Appeal from a district court order dismissing a complaint in a
tort action. Eighth Judicial District Court, Clark County; Gloria Sturman,
Judge.
Affirmed.
Brandon L. Phillips, Attorney at Law, PLLC, and Brandon L. Phillips, Las
Vegas,
for Appellant.
Kaempfer Crowell and Lyssa S. Anderson, Ryan W. Daniels, and Kristopher
J. Kalkowski, Las Vegas,
for Respondents.
BEFORE THE SUPREME COURT, PARRAGUIRRE, STIGLICH, and
SILVER, JJ.
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OPINION
By the Court, SILVER, J.:
In this appeal, we consider whether the district court erred in
determining that a proceeding before a citizen review board does not
warrant tolling the statute of limitations under our holding in State,
Department of Human Resources v. Shively, 110 Nev. 316, 871 P.2d 355(1994), or under equitable tolling principles. We conclude the review board
proceeding does not toll the statute under Shively because participation in
the proceeding was not mandatory. We also conclude that the doctrine of
equitable tolling does not apply here because appellant failed to
demonstrate that he acted diligently and that an extraordinary
circumstance prevented him from timely filing his civil complaint in district
court. Accordingly, we affirm the district court's order dismissing his
complaint.
FACTS AND PROCEDURAL HISTORY
On August 22, 2017, Las Vegas Metropolitan Police
Department (LVMPD) Officers Vonjagan and Tennant stopped appellant
Curtis Wilson for an improper lane change. Officer Vonjagan instructed
Wilson to get out of his car and move to the front of the LVMPD vehicle,
where Officer Vonjagan handcuffed him. Officer Tennant placed a second
set of handcuffs around Wilson's wrists. Wilson, an African-American,
alleges that the officers were motivated by racial animus and that they
handcuffed him so forcefully that they permanently injured his hands and
wrists. Wilson further alleges that the officers harassed him and made him
wait outside in high temperatures for a long time. Wilson avers that the
officers released him only after discovering that he is a retired firefighter.
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Wilson filed a citizen complaint with the LVMPD Citizen
Review Board (CRB) in October 2017. The CRB is an advisory board to
LVMPD. The CRB may refer citizen complaints against police officers to
the LVMPD and make recommendations regarding discipline, as well as
review LVMPD's internal investigations.1 In the present case, the CRB
referred Wilson's complaint to a hearing panel for further review. The CRB
informed Wilson that if he was not satisfied with the panel's decision, he
could "contact legal counsel to pursue any other legal remedies available."
The LVMPD Internal Affairs Bureau simultaneously reviewed the matter,
but it did not find a policy violation. At the CRB's initial hearing, the panel
disagreed with the bureau's determination and scheduled an evidentiary
hearing for March 14, 2018. That same day, following the evidentiary
hearing, the CRB found that there was no policy violation but concluded
that the officers had unnecessarily escalated the situation. On this basis,
the CRB recommended additional officer training.
On November 13, 2019, Wilson filed a civil complaint in district
court against LVMPD, Officer Vonjagan, and Officer Tennant (collectively,
when possible, LVMPD respondents), asserting claims for battery, false
imprisonment, and negligence. LVMPD respondents filed a motion to
dismiss, arguing that Wilson's complaint was barred by the statute of
limitations. Wilson countered that the statute of limitations was tolled
while he sought administrative remedies and that equitable considerations
favored tolling. The district court granted the motion to dismiss, finding
that tolling the statute of limitations was not warranted.
1We explained the CRB's purpose and function in Las Vegas Police
Protective Ass'n Metro, Inc. v. Eighth Judicial District Court, 122 Nev. 230,
234, 130 P.3d 182, 186 (2006) (citing, inter alia, NRS 289.387(4)).
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DISCUSSION
Standard of review
We review a dismissal for failure to state a claim pursuant to
NRCP 12(b)(5) de novo. Buzz Stew, LLC v. City of N. Las Vegas, 124 Nev.
224, 227-28, 181 P.3d 670, 672 (2008). A decision to dismiss a complaint
under NRCP 12(b)(5) is rigorously reviewed on appeal, with all alleged facts
in the complaint presumed true and all inferences drawn in favor of the
complainant. Id. Dismissal of a complaint is appropriate "only if it appears
beyond a doubt that [the plaintiff] could prove no set of facts, which, if true,
would entitle [the plaintiff] to relief." Id. at 228, 181 P.3d at 672.
The district court did not err in dismissing Wilson's complaint
NRS 11.190(4) provides a two-year limitations period for an
action for battery or false imprisonment, or for "an action to recover
damages for injuries to a person . . . caused by the wrongful act or neglect
of another." NRS 11.190(4)(c), (e). That period begins to run "when the
wrong occurs and a party sustains injuries for which relief could be sought."
Petersen v. Bruen, 106 Nev. 271, 274, 792 P.2d 18, 20 (1990). When a
plaintiffs complaint is untimely and the statute of limitations is not tolled,
dismissal of the complaint is proper. See Fausto v. Sanchez-Florez, 137
Nev., Adv. Op. 11, 482 P.3d 677, 683 (2021).
There is no dispute that Wilson filed his complaint more than
two years after the incident and that the complaint is time-barred unless
the statute was tolled. But Wilson argues that, under Shively, his pursuit
of administrative remedies tolled the statute of limitations. Wilson further
argues that Shively applies even when the exhaustion of administrative
remedies is not mandatory and that Nevada's equitable tolling principles
favor tolling the statute here. LVMPD respondents counter that Shively
does not apply because CRB is neither an administrative agency nor an
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administrative court and filing a complaint with the CRB was not a
prerequisite to filing a lawsuit. LVMPD respondents also contend that
equitable tolling is not available because Wilson was not diligent and failed
to demonstrate that extraordinary circumstances prevented him from
timely filing his complaint. We address Shively and equitable tolling in
turn.
Shively is distinguishable
As noted, Wilson primarily relies on Shively. There, the state
welfare department initiated an administrative proceeding to terminate
benefit payments to a Medicaid recipient who fraudulently obtained
eligibility for the program. 110 Nev. at 317, 871 P.2d at 355. After the
hearing officer affirmed the department's right to terminate benefits, the
department filed a complaint in district court to recover the benefits paid.
Id. The defendant argued the statute of limitations barred the complaint,
and the district court granted summary judgment. Id. at 317, 871 P.2d at
355-56. We reversed, explaining the department was required to
participate in the administrative action before it could discontinue benefits
or recoup expenses and thus should not be penalized for pursuing the
requisite administrative remedy before seeking relief in court. Id. at 318,871 P.2d at 356. We therefore concluded the statute of limitations was
tolled during the pendency of the administrative process. Id.Unlike the situation in Shively, Wilson was not required to
bring his tort claims to the CRB. NRS 289.387(4), which sets forth the
CRB's duties and powers, provides that the CRB "may . . . Heview an
internal investigation of a [police] officer.. . . and make recommendations
regarding any disciplinary action against the [police] officer? (Emphases
added.) Nothing in the statutes authorizing the creation of the CRB and
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defining its authority provide that participation in the CRB process is
mandatory, a prerequisite to filing a lawsuit, or binding on the police
officer's employer. See, e.g., NRS 289.380; NRS 289.387. Moreover,
correspondence from the CRB notified Wilson that he was free to pursue
legal remedies. Thus, nothing prevented Wilson from filing his civil
complaint before the completion of the CRB process. Accordingly, this case
is not analogous to Shively.
To the extent Wilson invites us to expand Shively to toll the
statute of limitations for administrative proceedings that are not
mandatory, we decline to do so for three reasons. First, Wilson presents no
arguments or authorities supporting his assumption that a CRB proceeding
is an administrative proceeding. See Edwards v. Emperor's Garden Rest.,
122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (200(3) (this court need not
consider issues not adequately briefed, not supported by relevant authority,
and not cogently argued); see also Las Vegas Police Protective Asen Metro,
122 Nev. at 234, 130 P.3d at 186 (explaining the CRB is an advisory body to
the police department that reviews internal investigations and makes
disciplinary recommendations). Second, we declined a similar invitation in
Siragusa v. Brown, where we explained that Shively's holding is limited to
[its] facts and [has] no broader application." 114 Nev. 1384, 1394 n.7, 971
P.2d 801, 808 n.7 (1998). Third, carving out the ad hoc exception Wilson
urges would undermine the Legislatures intent in enacting a statute of
limitation such as NRS 11.190(4). See Fausto, 137 Nev., Adv. Op. 11, 482
P.3d at 680 (2021) (explaining that statutes of limitations are intended to
prevent stale claims and `"to encourage the plaintiff to pursu[e] his rights
diligently"' (alteration in original) (quoting CTS Corp. v. Waldburger, 573
6
U.S. 1, 10 (2014))). Accordingly, we conclude that the CRB proceeding did
not toll the statute of limitations pursuant to Shively.
Equitable tolling does not apply
We recently established the threshold requirements for
equitable tolling of NRS 11.190(4)(as limitations period: (1) the plaintiff
exercised diligence in pursuing his or her claims, and (2) some
extraordinary circumstance prevented the plaintiff from bringing a timely
action.2 See Fausto, 137 Nev., Adv. Op. 11, 482 P.3d at 682. We address
these factors in turn.
Wilson was not diligent
When considering diligence, we evaluate, among other factors
and circumstances, whether the plaintiff made prompt efforts to assert the
claim. See id. (concluding that a plaintiff was not diligent, despite initially
reporting a crime perpetrated against her, because she "did not seek counsel
or assert her claims until two and a half years later"). In this case, Wilson
waited over a year and half after the CRB made its decision before he filed
his complaint in district court, and he provided no explanation for this
delay. Therefore, we conclude that Wilson did not diligently pursue his
claims.
No extraordinary circumstance prevented Wilson from timely
asserting his claims
Extraordinary circumstances exist where some circumstance
prevents the plaintiff from timely filing a complaint. See id. at 683
(concluding that the plaintiff did not show extraordinary circumstances
2Ifthese threshold factors are met, the district court must consider
the additional applicable factors set forth in Copeland v. Desert Inn Hotel,
99 Nev. 823, 826, 673 P.2d 490, 492 (1983). See Salloum v. Boyd Gaming
Corp., 137 Nev., Adv. Op. 56, 495 P.3d 513 (2021).
where nothing prevented her from timely filing her complaint). Wilson does
not point to any extraordinary circumstance beyond his control that
prevented him from timely filing his complaint, and the record does not
indicate that Wilson faced any such circumstance. At best, Wilson suggests
that LVMPD encouraged him to participate in the CRB process. However,
nothing in that correspondence indicated to Wilson that he was required to
complete the CRB complaint process before filing a civil complaint or that
the CRB process would provide the same remedies as a civil action.
Even assuming, arguendo, that Wilson was somehow
discouraged from filing a claim while the CRB proceeding was ongoing, this
does not explain why Wilson waited over 18 months after the CRB process
concluded to file his complaint. Moreover, to the extent Wilson mistakenly
believed the statute of limitations was tolled for the duration of his CRB
complaint, that mistaken belief is not an extraordinary circumstance
warranting equitable tolling. See Salloum, 137 Nev., Adv. Op. 56, 495 P.3d
at 518 (rejecting the notion that this court should equitably toll "otherwise-
expired claims because of [the plaintiffs] 'miscalculation of an amended
statute while represented by counser). Thus, we conclude that Wilson
failed to establish that an extraordinary circumstance prevented him from
timely asserting his claims and the district court properly determined that
the statute of limitations barred Wilson's complaint.
CONCLUSION
Shively does not provide grounds for tolling the statute of
limitations here, and Wilson additionally failed to establish grounds for
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equitable tolling. We therefore conclude that the district court properly
dismissed his untimely complaint. Accordingly, we affirm the district
court's dismissal order.
g -1-.4ce-4.3
Silver
, J.
We concur:
Parraguirre
Al4Gug J.
Stiglich
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