Hartrim v. Las Vegas Metropolitan Police Department et al
Filing
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ORDER Granting 14 Motion to Amend Complaint and 5 Motion to Dismiss as to certain claims. Signed by Judge Roger L. Hunt on 7/8/2011. (Copies have been distributed pursuant to the NEF - SLR)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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JERRY HARTRIM,
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Plaintiff,
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vs.
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LAS VEGAS METROPOLITAN POLICE
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DEPARTMENT, a Political Subdivision of the )
State of Nevada; OFFICER FERRANTE,
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P#13331, individually and in his official
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capacity as a police officer employed by the Las )
Vegas Metropolitan Police Department;
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OFFICER DELARIA, P#13338, individually )
and in his official capacity as a police officer
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employed by the Las Vegas Metropolitan Police )
Department; DOES OFFICERS I-XX, each
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individually and in their official capacities as
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police officers employed by the Las Vegas
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Metropolitan Police Department; CALIFORNIA )
HOTEL AND CASINO, a Nevada Corporation )
d/b/a SAM’S TOWN HOTEL, GAMBLING
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HALL AND BOWLING CENTER; DOE
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SECURITY OFFICERS I-XX and JOHN DOE )
I-XX inclusive,
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Defendants.
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_______________________________________)
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Case No.: 2:11-cv-00003-RLH-PAL
ORDER
(Motion to Dismiss, or in the
Alternative Motion for Partial
Summary Judgment #5,
Motion for Leave to Amend #14)
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Before the Court is Defendants Las Vegas Metropolitan Police Department
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(“LVMPD”), Officer DeLaria, and Officer Ferrante’s Motion to Dismiss or in the Alternative
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Motion for Partial Summary Judgment (#5, filed Jan. 6, 2011). The Court has also considered
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Plaintiff Jerry Hartrim’s Opposition (#11, filed Jan. 28, 2011), and Defendants’ Reply (#13, filed
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Feb. 7, 2011).
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Also before the Court is Plaintiff’s Motion to Amend Complaint (#14, filed May
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31, 2011). The court has also considered LVMPD’s Opposition (#15, filed June 8, 2011).
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California Hotel and Casino, d/b/a Sam’s Town Hotel, Gambling Hall, and Bowling Center
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(“Sam’s Town”) joined the opposition. (#16, filed Jun. 15, 2011).
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BACKGROUND
This dispute arises out of Plaintiff’s allegations that Defendants violated his
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constitutional and statutory rights while a guest at Sam’s Town. Plaintiff alleges that while he was
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a guest at Sam’s Town in November 2008 he left his room to attend a softball tournament. When
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he returned that evening he found an unknown woman inside his room, using his and his wife’s
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belongings. After discovering this stranger in his room, he called the front desk to complain. Both
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Metro officers and Sam’s Town security officers were then sent to his room. Plaintiff further
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claims he was talking with the Defendant officers when three of the police officers pushed him
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into the hallway and told him to stop resisting arrest. Plaintiff claims that he responded by saying,
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multiple times, that he was not resisting. Nonetheless, an officer told him to stop moving and
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threatened him with a taser if he did not desist. The Defendant officers then took Plaintiff
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downstairs in handcuffs and issued him a citation for obstructing an officer. The citation was
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dismissed on May 14, 2009.
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On November 15, 2010, Plaintiff filed suit in the Eighth Judicial District Court for
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the State of Nevada, and subsequently served the Defendants with notice on December 14th.
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Defendants removed the case to this Court on January 3, 2011. The Complaint alleges the
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following six claims: (1) illegal custom, policy, and practice under 42 U.S.C. § 1983, (2) civil
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rights violations against Sam’s Town and individual police officers also under § 1983, (3) false
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imprisonment, (4) conspiracy, (5) negligence, and (6) intentional infliction of severe mental
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distress. LVMPD has since filed a motion to dismiss the state causes of action (claims 3–6) for
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failing to give notice to the LVMPD within two years of the incident pursuant to NRS § 41.036(2).
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Plaintiff has also filed a motion to amend his complaint to identify Sam’s Town by its proper
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name. For the reasons discussed below, the Court grants Plaintiff’s motion to amend and grants
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the Defendants’ motion to dismiss.
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DISCUSSION
I.
Motion to Amend the Complaint
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Plaintiff seeks to amend his original complaint simply to properly name Defendant
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Sam’s Town. Though Defendants filed an opposition to this motion, they explicitly stated in their
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opposition that they do not oppose the granting of the motion. Defendants merely request the
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Court either first rule on their motion to dismiss or apply their motion to dismiss to the amended
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complaint as the amendment merely fixes Sam’s Town’s name. The Court grants Plaintiff’s
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motion, enters the Amended Complaint, and will apply the motion to dismiss to the Amended
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Complaint.
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II.
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Motion to Dismiss
A.
Legal Standard
A court may dismiss a plaintiff’s complaint for “failure to state a claim upon which
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relief can be granted.” Fed. R. Civ. P. 12(b)(6). A properly pled complaint must provide “a short
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and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
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8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require
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detailed factual allegations, it demands “more than labels and conclusions” or a “formulaic
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recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)
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(citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Factual allegations must be enough to rise
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above the speculative level.” Twombly, 550 U.S. at 555. Thus, to survive a motion to dismiss, a
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complaint must contain sufficient factual matter to “state a claim to relief that is plausible on its
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face.” Iqbal, 129 S. Ct. at 1949 (internal citation omitted).
In Iqbal, the Supreme Court recently clarified the two-step approach district courts
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are to apply when considering motions to dismiss. First, a district court must accept as true all
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well-pled factual allegations in the complaint; however, legal conclusions are not entitled to the
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assumption of truth. Id. at 1950. Mere recitals of the elements of a cause of action, supported only
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by conclusory statements, do not suffice. Id. at 1949. Second, a district court must consider
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whether the factual allegations in the complaint allege a plausible claim for relief. Id. at 1950. A
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claim is facially plausible when the plaintiff’s complaint alleges facts that allows the court to draw
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a reasonable inference that the defendant is liable for the alleged misconduct. Id. at 1949. Where
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the complaint does not permit the court to infer more than the mere possibility of misconduct, the
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complaint has “alleged—but not shown—that the pleader is entitled to relief.” Id. (internal
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quotation marks omitted). When the claims in a complaint have not crossed the line from
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conceivable to plausible, plaintiff’s complaint must be dismissed. Twombly, 550 U.S. at 570.
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B.
Substantial Compliance with NRS § 41.036(2)
Nevada law states that a person who has a tort claim against a political subdivision
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of the State must file notice of the claim to the governing body of that subdivision within two
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years of the time the cause of action accrues. NRS § 41.036(2). NRS § 41.036(2) applies in this
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case because the LVMPD is a political subdivision of the State.
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NRS § 41.036(2) does not allow for substantial compliance in order to meet its time
Substantial compliance to time restrictions
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restriction. “Under Nevada law, statutes setting forth explicit time restrictions generally are
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mandatory, and substantial compliance will not suffice, particularly where the statute does not
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include a ‘built-in grace period or safety valve provision.’” Zaic v. Las Vegas Metro. Police Dept.,
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2:10-cv-01814-PMP-GWF, 2011 WL 884335, *5 (D. Nev. Mar. 11, 2011) (quoting Leven v. Frey,
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168 P.3d 712, 717-18 (Nev. 2007)).
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Plaintiff argues that he substantially complied with NRS 41.036(2) by filing the
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complaint within the two-year period although he did not serve notice on Defendants until one
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month after the time limit expired. However, since this statute does not have a built-in grace
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period, substantial compliance does not suffice. Therefore, Plaintiff’s claim is barred because
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Plaintiff did not serve notice of the complaint within the time period set forth by the statute. See
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id. (holding that service of the complaint one month after the notice period expired was
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insufficient to comply with the NRS § 41.036(2)).
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2.
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“LVMPD’s lack of formal procedures for making such a claim does not relieve a
Defendant’s Lack of Formal Procedures to Provide Notice
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tort plaintiff from satisfying the notice requirement in § 41.036(2) by some means within the two-
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year period.” Zaic, at *2.
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Plaintiff argues that LVMPD lacks formal procedures to comply with the notice
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requirement of NRS 41.036(2). However, Plaintiff does not state that he attempted to give any
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notice to LVMPD within the two-year period. He only states that if he had attempted to give
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notice on time, LVMPD lacked the necessary formal procedures to comply with the statute. The
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Court does not find this argument persuasive because Plaintiff made no attempt to give any notice
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to Defendant within the two-year limit.
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C.
Constitutionality of NRS § 41.036(2)
The Zaic Court held that NRS § 41.036(2) is constitutional because, under the
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doctrine of sovereign immunity, the state could have opted not to allow any suits against itself or
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its political subdivisions and, therefore, the state may create limitations to any such waiver. Zaic,
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at *3. The Zaic Court supported this conclusion by quoting Johnson v. Maryland State Police, 628
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A.2d 162, 166 (Md. 1993), which states, “the legislature’s permission to sue in tort a previously
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immune sovereign can reasonably be accompanied by such terms and provisions as the legislature
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wishes to impose upon that right.” See also Rowland v. Washtenaw County Road Comm'n, 731
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N.W.2d 41, 51 n.9 (Mich. 2007) (collecting cases from various jurisdictions holding that notice-
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of-claim statutes do not violate the equal protection clause). The Johnson Court further describes
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the rational basis for the time limits on these statutes, “[the time limit] enables the State to make
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early decisions on the merits of particular claims, and allows the State to take remedial safety
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measures more quickly, thereby minimizing the cost of litigation for the taxpayers.” Johnson, at
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167.
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Plaintiff claims that NRS § 41.036(2) is unconstitutional because it violates the
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Plaintiff’s equal protection rights under the Constitution by creating two classes of tort victims
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(those suffering governmental harm and those suffering private harm) with different prerequisites
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to suit. Plaintiff bases his argument on Turner v. Staggs, 89 Nev. 230, 510 P.2d 879 (1973) and
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Jimenez v. State, 98 Nev. 204, 644 P.2d 1023 (1982), which held that requiring notice of a
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governmental tort claim within six months of the accrual of the injury was unconstitutional under
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the equal protection clause because a private tort claimant had a two year statute of limitations.
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However, these cases regarded an older version of § 41.036 that required notice of a claim as a
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condition precedent to filing suit, and required notice to be filed within six months of the accrual
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of the incident rather than two years. Plaintiff’s arguments fail because Turner and Jimenez are
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both distinguishable from the present case as the statute has been substantially amended. The
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current § 41.036(2) does not require the claimant to give notice as a condition precedent to filing
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suit, and gives a claimant two years to notify the political subdivision of the claim which is similar
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to the private tort two-year time restriction under NRS § 11.190(4). Further, “to the extent Turner
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stands for the proposition that a claims notice requirement like that in § 41.036(2) violates equal
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protection under the United States Constitution, the Court disagrees for the reasons set forth” in
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this order, Johnson, and Zaic. Zaic, at *5.
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D.
Tolling
Plaintiff asserts that equitable and other tolling principles should apply to this
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statute and relies on Harding v. Galceran, 889 F.2d 906 (9th Cir. 1989). However, Harding is a
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federal civil rights case that looked to California law regarding statutory limits and tolling
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principles where the plaintiff could not file suit against a police officer until the relevant criminal
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matter was completed. Plaintiff fails to cite any Nevada law that states criminal proceedings must
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be resolved before a complaint can be filed against a peace officer. Therefore, the Court rejects
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Plaintiff’s argument that the statute should be tolled on this basis.
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In sum, the Court finds that Plaintiff has failed to state a claim upon which relief
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could be granted because Plaintiff failed to comply with NRS § 41.0366(2)’s timely notice
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requirement. Thus, the Court dismisses Plaintiff’s state claims as against LVMPD, Officer
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DeLaria, and Officer Ferrante.
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CONCLUSION
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Accordingly, and for good cause appearing,
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IT IS HEREBY ORDERED that Plaintiff’s Motion to Amend the Complaint (#14)
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is GRANTED.
IT IS FURTHER ORDERED that Defendants’ Motion to Dismiss (#5) is
GRANTED as follows:
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Plaintiff’s claims for false imprisonment, conspiracy, negligence, and,
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intentional infliction of severe mental distress are dismissed as against
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LVMPD, Officer DeLaria, and Officer Ferrante.
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Dated: July 8, 2011.
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_____________________________
ROGER L. HUNT
United States District Judge
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