Chavez v. Las Vegas Metropolitan Police Department et al

Filing 36

ORDER that Defendants Partial Motion to Dismiss 11 is GRANTED. Sheriff Douglas C. Gillespie is hereby dismissed as a defendant; all official capacity claims are hereby dismissed; and the First Cause of Action is dismissed in part and may proceed only as a Fourth Amendment excessive force claim by Plaintiff in her representative capacity. Signed by Judge Larry R. Hicks on 5/30/12. (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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ALMA CHAVEZ, individually, and as
(Proposed) Special Administratrix of the
Estate of RAFAEL ALONSO OLIVAS,

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Plaintiff,
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v.
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LAS VEGAS METROPOLITAN POLICE
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DEPARTMENT; CHRISTOPHER GRIVAS, )
individually and in his official capacity;
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DAVID HAGER, individually and in his
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official capacity; SHERIFF DOUGLAS C.
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GILLESPIE, individually and in his official
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capacity; DOE OFFICERS I-X; DOES XI-XX, )
inclusive,
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Defendants.
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2:11-CV-01445-LRH-GWF
ORDER

Before the court is Defendants’ Partial Motion to Dismiss (#111). Plaintiff filed an

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opposition (#16), to which Defendants replied (#23).

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I.

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Facts and Procedural History
This is a civil rights and wrongful death action arising out of the shooting death of Plaintiff

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Alma Chavez’ son, Rafael Alonso Olivas, by officers of the Las Vegas Metropolitan Police

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Department (“LVMPD”). According to the Complaint (#1), in the early morning hours of July 14,

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2011, Plaintiff called 911 to request assistance from LVMPD’s crisis intervention team (“CIT”) to

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Refers to the court’s docket entry number.

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get help for Rafael, who suffered from a medical condition and had been arguing with Plaintiff and

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a female friend. Rafael became further upset upon hearing Plaintiff call the police and grabbed a

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kitchen knife and went outside. Plaintiff so informed the dispatcher. Shortly thereafter, LVMPD

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officers (not with the CIT) arrived, took up positions, and within two minutes shot and killed

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Rafael. Plaintiff was within 50 to 100 yards of Rafael and did not hear the officers give any

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commands or warnings or attempt to have him surrender before the shots were fired. The officers

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then prevented Plaintiff from approaching and comforting Rafael, and they handcuffed him as

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blood oozed from his mouth and body. Plaintiff further alleges that the officers purposefully

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delayed requesting or administering medical care so that Rafael would expire.

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On September 8, 2011, Plaintiff, on behalf of herself and as the proposed representative of

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Rafael’s estate, filed this action under 42 U.S.C. § 1983 and state law against LVMPD and Officer

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Christopher Grivas, Officer David Hager and Sheriff Douglas Gillespie in their individual and

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official capacities. The complaint contains six causes of action: (1) excessive force in violation of

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Rafael’s rights under the Fourth, Fifth and Fourteenth Amendments; (2) deprivation of Plaintiff’s

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individual right to familial relations under the First, Fourth and Fourteenth Amendments; (3)

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municipal liability under § 1983; (4) wrongful death; (5) negligence; and (6) negligent supervision

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and training.

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Defendants now move to dismiss certain claims and defendants for failure to state a claim,

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including (1) the claims against Officers Grivas and Hager and Sheriff Gillespie in their official

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capacities; (2) all claims against Sheriff Gillespie; (3) Plaintiff’s individual claim in the First Cause

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of Action; (4) the Fifth Amendment claims in the First Cause of Action; and (5) the Fourteenth

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Amendment claims in the First Cause of Action.

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II.

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Legal Standard
To survive a motion to dismiss for failure to state a claim under Federal Rule of Civil

Procedure 12(b)(6), a complaint must satisfy the notice pleading standard of Rule 8(a)(2). See
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Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1103 (9th Cir. 2008). A complaint must

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contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.

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R. Civ. P. 8(a)(2). The Rule 8(a)(2) pleading standard does not require detailed factual allegations;

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however, a pleading that offers only “labels and conclusions” or “a formulaic recitation of the

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elements of a cause of action” will not suffice. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)

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(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

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Furthermore, Rule 8(a)(2) requires a complaint to “contain sufficient factual matter,

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accepted as true, to state a claim to relief that is plausible on its face.” Id. at 1949 (internal

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quotation marks omitted). A claim has facial plausibility when the pleaded factual content allows

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the court to draw the reasonable inference, based on the court’s judicial experience and common

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sense, that the defendant is liable for the misconduct alleged. See id. at 1949-50. “The plausibility

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standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a

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defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a

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defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to

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relief.” Id. at 1949 (internal quotation marks and citation omitted).

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In reviewing a motion to dismiss, the court accepts the facts alleged in the complaint as

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true. Id. (citation omitted). However, “bare assertions . . . amount[ing] to nothing more than a

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formulaic recitation of the elements of a . . . claim . . . are not entitled to an assumption of truth.”

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Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quoting Iqbal, 129 S. Ct. at 1951)

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(alteration in original) (internal quotation marks omitted). The court discounts these allegations

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because they do “nothing more than state a legal conclusion – even if that conclusion is cast in the

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form of a factual allegation.” Id. (citing Iqbal, 129 S. Ct. at 1951.) “In sum, for a complaint to

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survive a motion to dismiss, the non-conclusory ‘factual content,’ and reasonable inferences from

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that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Id. (quoting

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Iqbal, 129 S. Ct. at 1949).

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III.

Discussion

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A. Official Capacity Claims

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“There is no longer a need to bring official capacity actions against local government

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officials [in their official capacities], for under Monell . . . local government units can be sued

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directly for damages and injunctive or declaratory relief.” Kentucky v. Graham, 473 U.S. 159, 167

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n.14 (1985). Because an official capacity suit against a municipal officer is equivalent to a suit

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against the government entity, the court may dismiss the officer as a redundant defendant where

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both the officer and the entity are named. Center for Bio-Ethical Reform, Inc. v. Los Angeles Cnty.

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Sheriff Dept., 533 F.2d 780, 799 (9th Cir. 2008). Accordingly, Defendants contend, and Plaintiff

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does not dispute, that the official capacity claims against Officers Grivas and Hager and Sheriff

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Gillespie are duplicative of Plaintiff’s claims against LVMPD. The claims are therefore subject to

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dismissal, even if Plaintiff were correct that the pleading of such claims is not necessarily improper.

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The official capacity claims shall be dismissed accordingly.

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B. Sheriff Gillespie, Individually

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Defendants next move to dismiss the remaining individual capacity claims against Sheriff

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Gillespie based on Plaintiff’s failure to allege any personal involvement. Under § 1983,

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supervisory officials are not vicariously liable for actions of their subordinates. Pembaur v. City of

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Cincinnati, 475 U.S. 469, 479 (1986). Rather, a supervisor may be held liable if there exists either

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(1) personal involvement in the constitutional deprivation, or (2) a sufficient causal connection

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between the supervisor’s wrongful conduct and the constitutional violation. Hansen v. Black, 885

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F.2d 642, 646 (9th Cir. 1989). Supervisory liability may be based on policy implementation rather

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than personal participation where the policy is “so deficient that the policy itself is a repudiation of

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constitutional rights and is the moving force of the constitutional violation.” Id. (internal

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quotations and citation omitted).

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Here, there are no allegations that Sheriff Gillespie was personally involved in the shooting
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of Rafael. Nor does the complaint include any non-conclusory, specific factual allegations to

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support a plausible claim that Sheriff Gillespie implemented a policy that itself was a repudiation of

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constitutional rights or was the moving force behind the shooting. Plaintiff’s allegation that Sheriff

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Gillespie ratified the officers’ conduct is insufficient, as such conduct occurred only after the

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alleged constitutional violation was complete. See id.; Hutchinson v. Grant, 796 F.2d 288, 291 (9th

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Cir. 1986). The individual capacity claims against Sheriff Gillespie shall be dismissed accordingly.

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Further, as no other claims remain against Sheriff Gillespie, he shall be dismissed as a defendant.

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C. First Cause of Action - Plaintiff’s Individual Claim

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Plaintiff alleges in her First Cause of Action that Rafael was subjected “to excessive force,

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thereby depriving Plaintiff and Rafael of certain constitutionally protected rights.” Complaint (#1),

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¶ 24 (emphasis added). Defendants construe this allegation as stating both a representative claim

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on behalf of Rafael’s estate and an individual claim by Plaintiff. Because only Rafael was

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subjected to excessive force, Defendants contend that Plaintiff may pursue such a claim only in her

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capacity as representative of the estate, and her individual claim must be dismissed. In response,

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Plaintiff states that the reference to “Plaintiff and Rafael” was intended to refer only to “Plaintiff as

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Special Administratrix of Rafael’s estate as well as to [Plaintiff’s] Fourteenth Amendment familial

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loss claim.”

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To the extent Plaintiff’s First Cause of Action may be construed to allege an individual

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excessive force claim by Plaintiff, the claim shall be dismissed. As the parties agree, the excessive

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force claim may be pursued by Plaintiff only in her capacity as representative of the decedent’s

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estate. Further, to the extent Plaintiff intends the First Cause of Action to state an individual claim

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for loss of familial association under the Fourteenth Amendment, such claim shall be dismissed as

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duplicative of Plaintiff’s Second Cause of Action. Thus, the court shall allow the First Cause of

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Action to go forward only as a representative claim for excessive force, and the motion to dismiss

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shall be granted as to any individual claims stated therein.

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D. First Cause of Action - Fifth Amendment Claims

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Defendants next move to dismiss the First Cause of Action to the extent Plaintiff alleges

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violations of the Fifth Amendment, as distinct from the Fourth and Fourteenth Amendments.

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Plaintiff concedes that there is no viable Fifth Amendment claim of excessive force and voluntarily

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withdraws such claims. The motion to dismiss will therefore be granted in this respect.

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E. First Cause of Action - Fourteenth Amendment Claims

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Defendants finally move to dismiss the First Cause of Action to the extent Plaintiff alleges

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violations of the Fourteenth Amendment. As Defendants contend, Plaintiff’s First Cause of Action

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for excessive force claim is cognizable only as a Fourth Amendment claim, and not as a Fourteenth

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Amendment due process claim. See Graham v. Connor, 490 U.S. 386, 394-95 (1989). The motion

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to dismiss with therefore be granted in this respect.

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IV.

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Conclusion
IT IS THEREFORE ORDERED that Defendants’ Partial Motion to Dismiss (#11) is

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GRANTED. Sheriff Douglas C. Gillespie is hereby dismissed as a defendant; all official capacity

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claims are hereby dismissed; and the First Cause of Action is dismissed in part and may proceed

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only as a Fourth Amendment excessive force claim by Plaintiff in her representative capacity.

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IT IS SO ORDERED.

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DATED this 30th day of May, 2012.

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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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