Barren v. Roger et al

Filing 19

ORDER that Defendants Robinson, Kent, and Shanes Motion to Dismiss 11 is GRANTED without prejudice. Signed by Judge Roger L. Hunt on 1/19/12. (Copies have been distributed pursuant to the NEF - ECS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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GREGORY D. BARREN, SR.,

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Plaintiff,
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vs.
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DAVID ROGER, District Attorney; OFFICER )
T. ROBINSON, P# 7466; OFFICER R. KENT, )
P# 6179; OFFICER D. SHANE, P# 6727,
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Defendants.
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_______________________________________)

Case No.: 2:11-cv-00650-RLH-CWH
ORDER
(Motion to Dismiss–#11)

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Before the Court is Defendant Officers Terry Robinson, Raymon Kent, and Donald

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Shane’s Motion to Dismiss (#11, filed Sept. 16, 2011) based on a failure to state a claim. The

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Court has also considered Plaintiff Gregory D. Barren, Sr.’s Opposition (#15, filed Sept. 27), and

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the Defendant Officers’ Reply (#16, filed Oct. 7). Plaintiff also filed a surreply ((#17, filed Oct.

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13).

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BACKGROUND
As the facts of this case are not necessary to the disposition of this motion, the

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Court declines to give an extensive recitation of the allegations in this case. In essence, Barren

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claims that he and his girlfriend, Suzie Bush, got into a heated argument at his home. Bush called

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and talked to an unnamed friend, who called the police and told them Barren had acted violently

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towards Bush. The Defendant Officers arrived on the scene and arrested Barren despite no visible

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signs of illegality, relying solely on Bush’s friend’s phone call. Barren now brings this action

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under § 1983 alleging violations under the 4th and 14th Amendments to the United States

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Constitution. Now before the Court is the Defendant Officers’ motion to dismiss. For the reasons

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discussed below, the Court grants the motion.

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DISCUSSION
I.

Legal Standard

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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).

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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, the complaint must be dismissed. Twombly, 550 U.S. at 570.
The Court also notes the well-established rule that pro se complaints are subject to

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“less stringent standards than formal pleadings drafted by lawyers” and should be “liberally

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construed.” Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007). This is particularly true in civil

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rights cases. Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988)

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(holding that courts must afford pro se plaintiffs “the benefit of any doubt”).

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II.

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Analysis
Section 1983 provides a mechanism for the private enforcement of substantive

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rights conferred by the Constitution and federal statutes. Graham v. Connor, 490 U.S. 386,

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393–94 (1989). Section 1983 “‘is not itself a source of substantive rights,’ but merely provides ‘a

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method for vindicating federal rights elsewhere conferred.’” Albright v. Oliver, 510 U.S. 266, 271

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(1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). To state a claim under § 1983,

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a plaintiff “must allege the violation of a right secured by the Constitution and the laws of the

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United States, and must show that the alleged deprivation was committed by a person acting under

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color of law.” West v. Atkins, 487 U.S. 42, 48–49 (1988).

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In this case Barren sues the Defendant Officers and District Attorney David Roger

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in their official capacities. Suing a government employee in his official capacity is the functional

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equivalent of suing the governmental entity itself and not the actual individual named. See

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Brandon v. Holt, 469 U.S. 464, 469-70 (1984); Larez v. City of Los Angeles, 946 F.2d 630, 646

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(9th Cir. 1991). To properly sue a government entity under § 1983, a plaintiff must allege that the

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constitutional deprivation of which he complains “was inflicted pursuant to an official policy or

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custom.” Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir 2001) (citing

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Monell v. Dep’t. of Soc. Servs., 436 U.S. 658, 690-91 (1978). Here, however, Barren’s complaint

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is devoid of any allegations of policies or customs. Without even the bare allegation of an

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improper policy or practice at the Las Vegas Metropolitan Police Department (the Defendant

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Officer’s employer), Barren’s first and second claims against the Defendant Officers in their

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official capacity fail. Thus, the Court dismisses Barren’s first and second claims without

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prejudice.

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CONCLUSION

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Accordingly, and for good cause appearing,

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IT IS HEREBY ORDERED that Defendants Robinson, Kent, and Shane’s Motion

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to Dismiss (#11) is GRANTED without prejudice.
Dated: January 19, 2012.

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____________________________________
ROGER L. HUNT
United States District Judge

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