EU7 ‘11, 

CLERY OF' Rr 

137 Nev., Advance Opinion 51 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

STEVE EGGLESTON, No. 80838 

Appellant, 

vs. 

GEORGINA STUART; CLARK 

COUNTY, NEVADA; LISA CALLAHAN; 

AND BRIAN CALLAHAN, 

Respondents. 

DUD 

SEP 2 3 2021 

BY 

C IIEF DEPUTY CLERK 

Appeal from a district court order dismissing an action raising 

federal civil rights and state law tort claims for failure to exhaust 

administrative remedies. Eighth Judicial District Court, Clark County; 

Douglas Smith, Judge. 

Affirmed in part, reversed in part, and remanded. 

McFarling Law Group and Emily M. McFarling, Las Vegas, 

for Appellant. 

Olson Cannon Gormley & Stoberski and Felicia Galati, Las Vegas, 

for Respondents Clark County, Nevada, and Georgina Stuart. 

Brian Callahan, New Lenox, Illinois, 

Pro Se. 

Lisa Callahan, New Lenox, Illinois, 

Pro Se. 

BEFORE THE SUPREME COURT, PARRAGUIRRE, STIGLICH, and 

SILVER, JJ. 

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OPINION 

By the Court, SILVER, J.: 

Appellant Steve Eggleston filed a 42 U.S.C. § 1983 civil rights 

claim, as well as various state law tort claims, in the district court. In his 

complaint, Eggleston alleged that respondent Georgina Stuart, who is 

employed by the Clark County Department of Family Services (DFS), and 

two police officers forced him to sign a temporary guardianship over his two 

minor children under threat of never seeing his children again. The papers 

gave temporary guardianship to the children's maternal aunt, Lisa 

Callahan, who thereafter took the children to another state. One month 

after Eggleston signed the papers, DFS made a finding of child 

maltreatment against Eggleston, which he administratively appealed. But 

Eggleston delayed the administrative hearing before a fair hearing officer 

and, in the meantime, filed the aforementioned civil rights and tort claims 

in the district court. The district court determined that punitive damages 

were not available and dismissed Eggleston's request for such damages 

against Stuart and thereafter dismissed Eggleston's § 1983 and state law 

tort claims for failure to exhaust his administrative remedies. Eggleston 

then appealed. 

In this opinion, we conclude that, consistent with Patsy v. Board 

of Regents, 457 U.S. 496 (1982), a party generally is not required to exhaust 

administrative remedies before filing a § 1983 civil rights claim. We also 

acknowledge that Zinermon v. Burch, 494 U.S. 113 (1990), provides a 

limited exception to Patsy's general rule for procedural due process claims. 

Here, we conclude that the district court erred by requiring Eggleston to 

administratively exhaust all potential remedies in his DFS case before 

bringing his § 1983 and state law tort claims, because, while related, the 

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cases ultimately seek different remedies for different wrongs. The district 

court also erred by finding that Eggleston's § 1983 claim was solely a 

procedural due process claim subject to the exhaustion doctrine because 

Eggleston actually presented a substantive due process claim. Therefore, 

the district court improperly dismissed Eggleston's § 1983 and state law tort 

claims. We also conclude that the district court erred by determining that 

punitive damages were unavailable against Stuart at this point in the 

litigation. 

FACTS AND PROCEDURAL HISTORY 

Clark County and Stuart became involved with Eggleston after 

the mother of Eggleston's two minor children, Laura Battistella, allegedly 

expressed suicidal ideation in December 2014 and emergency services were 

summoned. As a result of Stuart's involvement, Eggleston asserts, he and 

Battistella agreed to participate in a DFS program designed to help increase 

the well-being of the entire family, which also included two other minor 

children of Battistella. In addition, Battistella's sister, Lisa Callahan, 

visited from the Chicago area to help with childcare and to support 

Battistella. 

Eggleston alleges that on January 6, 2015, Stuart arrived at 

Eggleston and Battistella's home with two armed police officers, Lisa 

Callahan, and others. According to Eggleston, Stuart ordered Eggleston 

and Battistella to immediately sign temporary guardianship of the children 

over to Lisa Callahan, threatening that the police would take their children 

into custody and they would never see their children again if they did not 

comply. Under duress, Eggleston claims, he and Battistella signed the 

prepared temporary guardianship papers in front of a notary. Lisa 

Callahan thereafter took the children out of state, allegedly to Illinois to 

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hide them from Eggleston.1Eggleston alleges that he has not seen his 

children since this event, for over five years now. 

Thereafter, in early February, DFS made a finding of child 

maltreatment against Eggleston.2Eggleston appealed the finding to the 

DFS appeals unit, and the appeals unit manager upheld the finding. 

Eggleston then requested a fair hearing to administratively appeal that 

decision (the DFS case), as set forth in the relevant statutes. At Eggleston's 

request, the fair hearing was initially set for August 1, 2017, but Eggleston 

thereafter requested three continuances and stopped communicating with 

DFS to coordinate a date for that hearing. 

At no point did DFS move to terminate Eggleston's parental 

rights in Nevada. After Lisa Callahan fled to Illinois, Eggleston alleges he 

did not know the whereabouts of Lisa and his children for years. 

Unbeknownst to Eggleston, Lisa Callahan petitioned for permanent 

guardianship in an Illinois court. Eggleston then moved to terminate the 

guardianship in Illinois. 

Over one year after he requested a fair hearing in the DFS case, 

Eggleston filed a complaint against Georgina Stuart, DFS, Child Support 

Services, Clark County, Lisa Callahan, and Brian Callahan, alleging civil 

rights and tort law violations. Clark County and Stuart moved to dismiss 

the claims, arguing that Eggleston failed to state a claim upon which relief 

can be granted and that punitive damages were not permitted pursuant to 

NRS 41.035(1), which precludes punitive damages awards against 

1Lisa Callahan and her husband Brian Callahan are named as 

respondents in this appeal, but neither filed an answering brief. 

2Specifically, DFS found physical injury, neglect, and plausible risk of 

physical injury as to four minor children. 

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employees of political subdivisions acting in the scope of employment. The 

district court granted the motion, concluding that some of the claims were 

deficient and that punitive damages were unavailable, but leave to amend 

was granted. 

Eggleston filed a first amended complaint, again claiming 

violation of his civil rights under 42 U.S.C. § 1983 against Clark County and 

Stuart; conspiracy to violate his civil rights and intentional infliction of 

emotional distress (IIED) against Clark County, Stuart, and the Callahans; 

and defamation against Clark County, Stuart, and Lisa Callahan. Clark 

County and Stuart moved to dismiss Eggleston's first amended complaint 

under NRCP 12(b)(5) based on Eggleston's failure to exhaust his 

administrative remedies in his DFS case. Clark County and Stuart argued 

that because Eggleston's fair hearing was still pending, the exhaustion of 

administrative remedies doctrine barred Eggleston's civil complaint. 

Eggleston opposed the motion, but the district court dismissed his claims, 

finding that Eggleston initiated an administrative appeals process in the 

DFS case that was still pending when he filed his first amended complaint 

in the district court. The court further found that Eggleston's civil rights 

claims were based on procedural due process violations and thus excepted 

from the general rule that § 1983 claims do not require exhaustion. 

Accordingly, the district court found that Eggleston must first exhaust his 

administrative remedies in the DFS case and dismissed his § 1983 civil 

rights and state law tort claims on that basis. Eggleston moved for 

reconsideration, which was denied.3 

3After the order dismissing the action was entered, the case was 

reassigned to Judge Cristina D. Silva, who decided the motion for 

reconsideration. 

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Eggleston appeals, arguing the exhaustion doctrine does not 

apply here and, therefore, the district court improperly dismissed his § 1983 

and state law tort claims. He further argues the district court improperly 

dismissed his request for punitive damages against Stuart. 

DISCUSSION 

Standard of review 

A dismissal for failure to state a claim pursuant to NRCP 

12(b)(5) is reviewed 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. 

Eggleston was not required to exhaust his administrative remedies before 

filing a 42 U.S.C. § 1983 civil rights claim in the district court 

Eggleston argues that the district court erred by dismissing his 

42 U.S.C. § 1983 civil rights claim because under Patsy v. Board of Regents, 

457 U.S. 496 (1982), he was not required to exhaust the administrative 

remedies in his DFS case before filing a § 19834civil rights claim in the 

district court. Clark County and Stuart counter that Eggleston must first 

exhaust the administrative remedies in his DFS case under the exhaustion 

4Egg1eston refers to his two civil rights claims as § 1983 claims. 

However, his conspiracy claim actually falls under 42 U.S.C. § 1985. 

Eggleston fails to provide any authority or argument regarding § 1985 or 

demonstrate that the exception to the exhaustion doctrine for § 1983 claims 

applies to § 1985 claims. Therefore, his arguments regarding this claim are 

waived, and we affirm the dismissal of Eggleston's § 1985 conspiracy claim. 

Powell v. Liberty Mut. Fire Ins. Co. , 127 Nev. 156, 161 n.3, 252 P.3d 668, 

672 n.3 (2011) (noting that arguments not raised in the opening brief are 

deemed waived). 

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doctrine because his § 1983 claim is a procedural due process claim, which 

is an exception to Patsy under Zinermon v. Burch, 494 U.S. 113 (1990).5We 

conclude that Eggleston was not required to exhaust his administrative 

remedies before bringing his § 1983 claim in the district court. 

"Ordinarily, before availing oneself of district court relief from 

an agency decision, one must first exhaust available administrative 

remedies." Malecon Tobacco, LLC v. State, Dep't of Taxation, 118 Nev. 837, 

839, 59 P.3d 474, 475-76 (2002). “[F]ailure to do so renders the controversy 

nonjusticiable." Allstate Ins. Co. v. Thorpe, 123 Nev. 565, 571, 170 P.3d 989, 

993 (2007). "The exhaustion doctrine gives administrative agencies an 

opportunity to correct mistakes and conserves judicial resources, so its 

purpose is valuable; requiring exhaustion of administrative remedies often 

resolves disputes without the need for judicial involvement." Id. at 571-72, 

170 P.3d at 993-94. 

However, a party is generally not required to exhaust state 

administrative remedies before bringing a civil rights claim in federal or 

state court under 42 U.S.C. § 1983.6 Patsy, 457 U.S. at 516; Felder v. Casey, 

5We have considered Stuart's arguments regarding the finality 

doctrine, NRS 432B.317, and NRS 233B.130, and in light of our decision 

here, we conclude those arguments are without merit. We also do not 

address Stuart's argument that the district court properly denied 

Eggleston's NRCP 56(f) request for discovery because Eggleston does not 

dispute this ruling on appeal. 

642 U.S.C. § 1983 reads as follows: 

Every person who, under color of any statute, 

ordinance, regulation, custom, or usage, of any 

State or Territory or the District of Columbia, 

subjects, or causes to be subjected, any citizen of the 

United States or other person within the 

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487 U.S. 131, 146-47 (1988). Section 1983s purpose is "to interpose the 

federal courts between the States and the people, as guardians of the 

peoples federal rights—to protect the people from unconstitutional action 

under color of state law." Patsy, 457 U.S. at 503 (internal quotation marks 

omitted). "[O]verlapping state remedies are generally irrelevant to the 

question of the existence of a cause of action under § 1983," Zinermon, 494 

U.S. at 124, because "Mlle federal remedy is supplementary to the state 

remedy, and the latter need not be first sought and refused before the 

federal one is invoked." Monroe v. Pape, 365 U.S. 167, 183 (1961), overruled 

in part on other grounds by Monell v. N.Y. City Dep't of Soc. Servs., 436 U.S. 

658 (1978). 

This general rule applies to § 1983 claims for fundamental 

rights violations or substantive due process claims. Zinermon, 494 U.S. at 

125. "Substantive due process guarantees that no person shall be deprived 

of life, liberty or property for arbitrary reasons." In re Guardianship of L.S. 

& H.S., 120 Nev. 157, 166, 87 P.3d 521, 527 (2004) (internal quotation 

marks omitted). Substantive due process protects certain individual 

liberties against arbitrary government deprivation regardless of the 

fairness of the state's procedure. 16C C.J.S. Constitutional Law § 1884 

(2021). It does not protect against all government infringement, but is 

"reserved for the most egregious governmental abuses against liberty or 

property rights, abuses that shock the conscience or otherwise offend 

judicial notions of fairness and that are offensive to human dignity." Id. 

jurisdiction thereof to the deprivation of any rights, 

privileges, or immunities 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 . . . . 

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The exhaustion doctrine is not a bar to § 1983 substantive due process 

claims because "the constitutional violation actionable under § 1983 is 

complete when the wrongful action is taken." Zinermon, 494 U.S. at 125. 

The same cannot be said for procedural due process claims, 

which are an exception to the general rule. Id. ("[T]he existence of state 

remedies is relevant" to a § 1983 claim "brought for a violation of procedural 

due process."). Procedural due process rules protect persons from 

deprivations of life, liberty, or property that are mistaken or unjustified. 

16C C.J.S. Constitutional Law § 1884 (2021). Procedural due process claims 

arise where the State interferes with a liberty or property interest and the 

States procedure was constitutionally insufficient. Malfitano v. Cty. of 

Storey, 133 Nev. 276, 282, 396 P.3d 815, 819 (2017). In such claims, State 

deprivation "of a constitutionally protected interest in life, liberty, or 

property is not in itself unconstitutional; what is unconstitutional is the 

deprivation of such an interest without due process of law." Zinermon, 494 

U.S. at 125 (internal quotation marks omitted). Therefore, "Mlle 

constitutional violation actionable under § 1983 is not complete when the 

deprivation occurs; it is not complete unless and until the State fails to 

provide due process." Id. at 126. 

Here, the district court correctly stated that a § 1983 claim for 

a violation of procedural due process will not stand until the State fails to 

provide due process. But as set forth in more detail below, we conclude the 

district court incorrectly applied that standard to Eggleston's § 1983 claim 

in this case. 

First, we conclude the district court erroneously determined 

Eggleston's due process claim was a procedural one. Although Eggleston 

complains in part that Clark County and Stuart failed to provide him with 

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notice of the allegations against him and an opportunity to respond in 

rebuttal, at its core, Eggleston's complaint presents a substantive due 

process claim for violation of the fundamental right to parent his children. 

The fundamental right to "bring up children" is encompassed within the 

right to liberty, a core guarantee protected by the Due Process Clause of the 

Fourteenth Amendment. Meyer v. Nebraska, 262 U.S. 390, 399 (1923); see 

also In re L.S., 120 Nev. at 166, 87 P.3d at 527 (addressing a parent's 

substantive due process rights). Indeed, "[t] he liberty interest . . . of 

parents in the care, custody, and control of their children[ ] is perhaps the 

oldest of the fundamental liberty interests recognized by this Court." Troxel 

v. Granville, 530 U.S. 57, 65 (2000). Here, not only is Eggleston claiming 

that he was not afforded adequate process protecting against the mistaken 

or unjustified loss of that right, but he is alleging that Clark County and 

Stuart arbitrarily and capriciously interfered with this right when, without 

cause, they forced him under duress to sign temporary guardianship papers 

leading to the unwarranted removal of his children from his care.7 

Eggleston further alleges that he thereafter did not have contact with his 

children for over five years, and the woman who fled the state with his 

children was able to obtain guardianship over his children in Illinois. 

Moreover, he claims, the children's forced removal from his home was part 

of a design to enhance the county budget and for personal gain. Taking 

Eggleston's allegations as true, as we must in the context of a motion to 

dismiss, the State's actions "shock the conscience by removing the 

7Furthermore, the record on appeal demonstrates that Clark County 

and Stuart focused their defense on the exhaustion of administrative 

remedies and did not provide any contradicting facts as to what happened 

when Eggleston signed the temporary guardianship below. 

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possibility of reunification and by violating Eggleston's fundamental right 

to raise his children. The constitutional violation was complete when the 

State forced Eggleston to sign the temporary guardianship papers, and thus 

this claim is fundamentally a substantive due process one exempt from the 

exhaustion doctrine. 

Moreover, while Stuart argues, and the district court found, 

that Eggleston's § 1983 claim was an extension of his DFS case, the two 

cases are separate from each other, as they arise from two separate factual 

circumstances. Eggleston's allegations for his § 1983 claim arise from an 

incident that occurred before DFS made its finding of child maltreatment, 

while the DFS proceedings concern only that finding. And there is nothing 

in the record to suggest that DFS's finding of child maltreatment arose from 

the same set of facts underlying Eggleston's allegations that DFS coerced 

Eggleston into signing away his guardianship rights at the time that DFS 

removed the children frorn Eggleston. Thus, the district court improperly 

linked the case before it with the DFS case. 

We further note that because Eggleston alleges DFS forced him 

to sign temporary guardianship papers without first implementing any 

process, Eggleston's allegations arise from a situation for which there were 

no administrative remedies available to redress the harm of losing his 

children. Importantly, if the State had instead petitioned the district court 

for temporary guardianship over Eggleston's children, it would have given 

Eggleston the chance to appear and oppose the temporary guardianship in 

open court. Thus, in that situation, due process would have been available 

to Eggleston, which he would have been required to pursue before raising 

his § 1983 claim. But here, Eggleston alleges that he was coerced by the 

government to sign temporary guardianship papers releasing his children 

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to the Callahans care and he has never had an opportunity to see them 

again in over five years. Therefore, his § 1983 claim seeks to redress the 

harm stemming from that particular event, whereas even if Eggleston 

prevailed in the DFS case by proving the abuse allegations were 

unsubstantiated, his only remedy is that his name would be removed from 

the DFS's Central Registry. Accordingly, there is no relevant 

administrative remedy available to Eggleston stemming from these unique 

circumstances. 

In sum, the district court improperly linked the DFS case to 

Eggleston's complaint, which, at its core, presents a substantive due process 

claim, and there is no relevant administrative remedy for Eggleston to 

exhaust. Therefore, we conclude that the district court erred by dismissing8 

Eggleston's § 1983 civil rights claim for failure to exhaust administrative 

remedies.9 

The district court erred by dismissing Eggleston's state law tort claims 

Eggleston next argues that the district court erred by 

dismissing his state tort I1ED and defamation claims based on the failure 

to exhaust administrative remedies. Stuart responds that because 

Eggleston's state law tort claims are related to DFS's finding of child 

maltreatment, he must first exhaust his administrative remedies. 

81n light of our decision, the parties' arguments regarding NRCP 12 

and the affidavit are moot, and we need not consider them. See Edwards v. 

City of Reno, 45 Nev. 135, 143, 198 P. 1090, 1092 (1921) ("Appellate courts 

do not give opinions on moot questions or abstract propositions."). 

9We recognize the complaint includes language that appears to 

reference DFS's finding of child maltreatment and administrative remedies, 

suggesting the claim may be an administrative one, but we conclude the 

heart of the complaint is a § 1983 action. The district court may address 

the extraneous language upon remand. 

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Eggleston's state law tort claims do not implicate any 

administrative process. "Any preliminary, procedural or intermediate act 

or ruling by an agency in a contested case is reviewable if review of the final 

decision of the agency would not provide an adequate remedy." NRS 

233B.130(1). NRS 4328.317(1) provides for the administrative appeal of 

the substantiation of the agency's report of abuse or neglect and "the 

agency's intention to place the person's name in the Central Registry." 

Where an agency is "without authority to award damages caused by 

defamation[J . . . the doctrine of exhaustion of administrative remedies is 

not applicable." Ambassador Ins. Corp. v. Feldman, 95 Nev. 538, 539, 598 

P.2d 630, 631 (1979). 

Here, the district court dismissed all of Eggleston's tort claims 

based on failure to exhaust administrative remedies. But to the extent that 

Eggleston's IIED and defamation claims rest on his allegations that he was 

forced to sign a temporary guardianship over his children, exhaustion is not 

required because, as explained above, these allegations do not arise from an 

administrative process. Moreover, the exhaustion doctrine does not 

preclude Eggleston's defamation claim because the agency is unable to 

grant the damages he seeks. See NRS 233B.130(1); Ambassador Ins. Corp., 

95 Nev. at 539, 598 P.2d at 631. Finally, the exhaustion doctrine does not 

apply to the claims against the Callahans because they are not an 

administrative agency. See Benson v. State Engineer, 131 Nev. 772, 777, 

358 P.3d 221, 224 ("Ordinarily, before availing oneself of district court relief 

from an agency decision, one must first exhaust administrative remedies.") 

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(emphasis added). Accordingly, we conclude the district court improperly 

dismissed these claims.° 

The district court erred by disallowing punitive damages against Stuart 

Eggleston argues that the district court erred by disallowing 

punitive damages against Stuart." Clark County and Stuart respond that 

the district court properly disallowed punitive damages because Eggleston 

sued Stuart in her official capacity. 

A tort action against an employee of the State or its political 

subdivision "arising out of an act or omission within the scope of the person's 

public duties or employment" may not include punitive damages. NRS 

41.035(1). To determine whether a party has been sued in his or her official 

or individual capacity, this court looks to the allegations of the complaint. 

See N. Nev. Ass'n of Injured Workers v. Nev. SIIS, 107 Nev. 108, 114-15, 807 

P.2d 728, 732 (1991). "[C]ivil rights violations . . . are hardly descriptive of 

acts that may be rationally included within the prerogatives of an 

employees official capacity." Id. at 115, 807 P.2d at 732. 

Here, Eggleston appeals from a final judgment, the district 

coures order dismissing Eggleston's claims. In a prior order, the district 

court dismissed punitive damages against Stuart, finding Stuart was 

immune from punitive damages because Eggleston's complaint alleged 

°However, because Eggleston's state law tort claims appear to be 

tied, at least to some extent, to the facts of the DFS case in that they 

implicitly dispute the DFS's finding of child maltreatment, a stay may be 

appropriate here for certain claims. We therefore reverse the order 

dismissing these claims but remand for the district court to determine 

whether a stay is appropriate. 

11Egg1eston disputes the district court's dismissal of the request for 

punitive damages only as to Stuart on appeal, so we affirm the district 

court's dismissal of punitive damages against Clark County. 

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Stuart was acting within the scope of her employment with the exception of 

"certain occasions not specifically pleaded within the complaint. However, 

in his complaint, Eggleston alleged that Stuart arrived at his home with 

two police officers and forced him to sign temporary guardianship papers 

under the threat that he would otherwise never see his children again. 

Taking these allegations as true, Eggleston could prove that Stuart violated 

his civil rights and, therefore, that Stuart was acting in her individual 

capacity rather than her official capacity. In turn, Eggleston could be able 

to pursue punitive damages against Stuart. Therefore, we conclude that 

the district court erred by determining that punitive damages against 

Stuart were unavailable to Eggleston at this point in the case. 

CONCLUSION 

Under Patsy v. Board of Regents, 457 U.S. 496 (1982), a party 

is generally not required to exhaust administrative remedies before filing a 

§ 1983 civil rights claim. Here, the § 1983 claim is, at its core, one for 

substantive due process, and because the exception for procedural due 

process claims does not apply, the district court improperly dismissed 

Eggleston's § 1983 civil rights claim for failure to exhaust administrative 

remedies. Thus, we reverse the dismissal of Eggleston's § 1983 civil rights 

claim. We likewise reverse the district court's dismissal of Eggleston's state 

law tort claims, reverse the district court's dismissal of punitive damages 

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against Stuart, and remand for further proceedings consistent with this 

opinion. We affirm the district court's dismissal of Eggleston's § 1985 

conspiracy claim and determination that punitive damages against Clark 

County are not available. 

J. 

Silver 

We concur: 

, J. 

Parraguirre 

A/a.sit4-0 , J 

Stiglich ' 

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