Nevares v. Flose

Background

John G. Nevares, representing himself, brought this civil-rights action under 42 U.S.C. § 1983 against San Jose police officers Travis Flosi and Chase Brower. He alleged that the officers unlawfully detained and searched him, used excessive force that broke his right wrist, and retaliated against him for exercising First Amendment rights.

Nevares alleged that, after his request for government assistance was denied, he painted a message at San Jose City Hall on June 29, 2022. He said security officers attacked and arrested him and that, during a later encounter on August 12, 2022, Officer Flosi told him to stay away from City Hall after allegedly using force against him.

The officers described a different account of the August encounter. They said they contacted Nevares because his truck was parked near a tent on a landscaped area of a park, where camping and vehicle parking allegedly violated the San Jose Municipal Code. They said Nevares was agitated, refused to identify himself or leave, and was handcuffed while they investigated. They denied slamming him into a vehicle, twisting his wrist, or using excessive force. The officers submitted Officer Brower’s body-camera video.

Motion to Amend

After the officers filed their summary-judgment motion, Nevares moved to amend his complaint. His proposed amendment sought to add several officers and two judges as defendants and to add a conspiracy-to-commit-retaliation or bodily-harm claim under the First and Fourth Amendments. The court found that the proposed allegations appeared to concern different events, locations, dates, and circumstances.

Applying Federal Rule of Civil Procedure 15(a), the court denied the motion to amend. The request came after the summary-judgment motion was filed and after the November 1, 2024 close of fact discovery. Allowing the amendment would require service on additional parties, reopen discovery, and derail the existing schedule, prejudicing the two defendants who had litigated the case for more than a year. The denial was without prejudice to Nevares considering whether he could assert additional claims in separate lawsuits; the court expressed no opinion on the merits or viability of those possible claims.

Summary Judgment Standard

The court explained that summary judgment is appropriate when there is no genuine dispute over a material fact and the moving party is entitled to judgment as a matter of law. Once the moving party meets its initial burden, the opposing party must produce admissible evidence showing a genuine issue for trial. The court noted that Nevares did not file a written response or submit evidence in opposition, although he appeared at the hearing and stated his opposition.

Fourth Amendment Claim

For an investigative detention, the Fourth Amendment permits officers to briefly stop and detain a person when specific, explainable facts create reasonable suspicion that criminal activity may be occurring. Excessive-force claims arising during an arrest or investigative stop are evaluated under the Fourth Amendment’s reasonableness standard.

The court held that the officers had reasonable suspicion to stop and detain Nevares while investigating the situation. The video showed that his vehicle was parked on a landscaped area near a tent, that he became visibly upset and refused to identify himself, and that he acknowledged camping in the park for several days. The court concluded that the detention was not unlawful and was reasonably related to identifying Nevares, investigating the circumstances, and determining whether citations should be issued.

The court also rejected the excessive-force claim. Even viewing the record in the light most favorable to Nevares, the court found his allegations unsupported. The body-camera footage supported the officers’ contention that no one slammed Nevares into a vehicle or twisted his wrist and showed no conduct that a reasonable factfinder could conclude was excessive force. The court therefore found no genuine issue of material fact and granted summary judgment to the defendants on the Fourth Amendment claim.

First Amendment Claim

Nevares alleged that the officers harassed and injured him in retaliation for his First Amendment activity, including painting a message on City Hall. To establish First Amendment retaliation, a plaintiff must show protected activity, conduct that would discourage an ordinarily firm person from continuing that activity, and that the protected activity was a substantial or motivating factor in the defendants’ conduct. The plaintiff must also show that the protected activity was the but-for cause of the challenged action.

The court assumed, without deciding, that Nevares’s City Hall painting was protected First Amendment activity. It nevertheless granted summary judgment to the defendants because Nevares presented no evidence of causation. The court found no indication that Officers Flosi or Brower participated in the earlier City Hall encounter or knew about it. The body-camera footage also did not show that either officer told Nevares to stay away from City Hall during the August 12 encounter.

Disposition

The court granted defendants’ motion for summary judgment on Nevares’s Fourth Amendment and First Amendment claims and denied Nevares’s motion to amend his complaint. The Clerk was directed to enter judgment and close the file. Because the court concluded that the officers did not violate Nevares’s First or Fourth Amendment rights, it did not reach qualified immunity.