Peoples v. North Las Vegas Police Department

Filing 22

ORDER that 10 Motion to Dismiss is GRANTED. Signed by Judge Jennifer A. Dorsey on 7/17/14. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Lewis Peoples, III,

Case No.: 2:12-cv-946-JAD-NJK

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Plaintiff,

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v.

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Order Granting Defendant’s Motion
to Dismiss [Doc. 10] with Leave to
Amend

North Las Vegas Police Department,

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Defendant.

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Plaintiff Lewis Peoples III sues the North Las Vegas Police Department for an alleged
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traffic-stop arrest in 2012. Doc. 5. The NLVMPD moves to dismiss his complaint because:
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(1) the NLVMPD is not a separate legal entity subject to suit, and (2) Plaintiff’s allegations
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are too thin and conclusory to state any cognizable claim for relief. Doc. 10. The Court
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finds this motion appropriate for disposition without oral argument, grants the motion to
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dismiss, but gives Plaintiff 20 days to file an amended complaint naming the proper
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defendant and providing enough facts to state a viable claim.
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Discussion
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A.

Motion to Dismiss

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The NLVMPD argues that it is not subject to suit because it is not organized as a
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separate municipal entity, and only separate corporations may be properly sued. Doc. 10 at
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3. A public agency is not a person or entity subject to suit unless that agency is a separate
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legal entity.1 Under Federal Rule of Civil Procedure 17(b), an entity’s capacity to be sued is

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Harvey v. Estes, 65 F.3d 784, 791-92 (9th Cir. 1995).

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determined under Nevada state law.2 In Nevada, “[i]n the absence of statutory authorization,

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a department of the municipal government may not, in the departmental name, sue or be

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sued.”3 The proper defendant is instead the municipality itself, not a department of the

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municipality. Peoples’s citations to foreign authority and dictionary definitions of the word

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“person” miss the point. The NLVMPD is simply not a separate legal entity in Nevada with

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the legal capacity to be sued in its departmental name. Other trial courts in this district have

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similarly held the NLVMPD immune from suit and dismissed claims against it on that basis.4

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This Court reaches the same conclusion here and grants the NLVMPD’s motion to dismiss.

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The appropriate target defendant for Plaintiff’s claims is the City of North Las Vegas, not its

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police force.

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B.

The Complaint fails to state any cognizable claim for relief.

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Plaintiff’s claims must be dismissed for the independent reason that Plaintiff has not

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stated enough facts to support a claim under any theory he references. Federal Rule of Civil

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Procedure 8(a) supplies the standard for pleadings in a federal cause of action and states, “[a]

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pleading that states a claim for relief must contain: (1) a short and plain statement of the

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grounds for the court’s jurisdiction . . . .; (2) a short and plain statement of the claim showing

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that the pleader is entitled to relief; and (3) a demand for the relief sought.”5 A district court

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may dismiss a complaint for failing to state a claim upon which relief can be granted under

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Rule 12(b)(6).6 “To survive a motion to dismiss, a complaint must contain sufficient factual

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matter, accepted as true, to state a claim for relief that is plausible on its face.”7 “[A]

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plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more

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Fed. R. Civ. Proc. 17(b).

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Wayment v. Holmes, 912 P.2d 816, 819 (Nev.1996) (citation omitted).

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See, e.g., Ali v. City of North Las Vegas, 2012 WL 2503071, at *3 (D. Nev. June 28, 2012); Wallace
v. City of North Las Vegas, 2011 WL 2971241, at *1 (D. Nev. July 20, 2011).

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Fed. R. Civ. Proc. 8(a).

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Fed. R. Civ. Proc. 12(b)(6).

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

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than labels and conclusions, and a formulaic recitation of the elements of a cause of action

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will not do. Factual allegations must be enough to raise a right to relief above the speculative

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level.”8 The Court is also “not bound to accept as true a legal conclusion couched as a

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factual allegation.”9 To state a “plausible” claim for relief, the plaintiff must “plead[] factual

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content that allows the court to draw a reasonable inference that the defendant is liable for

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the misconduct alleged.”10 This requires a plaintiff to state “enough facts to raise a

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reasonable expectation that discovery will reveal evidence” of the allegations charged.11

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Plaintiff does little more in his complaint [Doc. 5] than string together various

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buzzwords (“A Natural man rights of the Constitution on Amendment 4 and 9 was violated.

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Illegal searches and seized of property. False imprisonment and cruel treatment and slander.

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Police Officer’s [sic] acted under ‘color of law.’ It was no probable cause for their actions.”)

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Doc. 5 at 3. Although he offers a handful of facts describing what he contends was an

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unconsented-to search and unlawful seizure, the only legal theory he comes close to stating a

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claim under is the Fourth Amendment. But even that claim is legally insufficient because

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Plaintiff does not allege that the offending actions were the result of an official policy or

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custom. Thus, even if the Court were not dismissing the complaint based on Plaintiff’s

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naming of the wrong defendant, the complaint would be dismissed for failure to state

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sufficient facts to support any claim.12

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C.

Leave to Amend

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Although Peoples does not request leave to amend his complaint, the Court, out of an

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abundance of caution, considers whether such relief should be afforded. Under Fed. R. Civ.

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

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Id. (quoting Papsan v. Allain, 478 U.S. 265, 286 (1986)).

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Cafasso, U.S. ex rel. v. General Dynamics C4 Systems, Inc., 637 F.3d 1047, 1055 (9th Cir. 2011)
(quoting Twombly, 550 U.S. at 556).
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Iqbal, 556 U.S. at 678-79.

As Peoples has not stated any cognizable state law claim, the Court does not reach the question of
whether it would exercise supplemental jurisdiction over state law claims under 28 U.S.C. § 1367.

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Proc. 15(a), a plaintiff may amend his or her complaint once as a matter of course within 21

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days after service of a responsive pleading.13 After the time for amendment as a matter of

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right has elapsed, leave to amend should be freely granted when justice so requires.14 A

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district court abuses its discretion when it dismisses a complaint without granting leave to

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amend at least once or determining that the allegations, if adequately pled, could survive a

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motion to dismiss.15

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Peoples is a pro se plaintiff who named the wrong defendant entity and has not stated

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sufficient facts to support any claim. In the interests of justice and the liberal amendment

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policy, the Court permits Peoples to file a newly amended complaint within the next 20 days

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to remedy the defects in Peoples’s claims by substituting the NLVMPD with the proper

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defendant and adding facts that give rise to the legal claims he believes he can properly

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support. Peoples is cautioned:

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If he chooses to file an amended complaint, it must comply with all rules of this

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Court, which include the Federal Rules of Civil Procedure (available on the U.S. Courts

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website at http://www.uscourts.gov/uscourts/rules/civil-procedure.pdf) and the Local Rules

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of Practice for the District of Nevada (available on this Court’s website at

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http://www.nvd.uscourts.gov/). A plaintiff is not relieved of the obligation to follow all rules

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of this Court simply because he has chosen to represent himself.16

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2.

Although the Court is in no way identifying all of the rules and procedures that

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Plaintiff must follow, it will highlight a few of the rules that specifically apply to the form of

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complaints. For example (and again, this list is in no way exhaustive and Plaintiff has the

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obligation to research, become familiar with, and comply with all of the rules of this Court):

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Fed. R. Civ. Proc. 15(a)(1)(B).

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Id. at 15(a)(2); Forman v. Davis, 371 U.S. 178, 182 (1962).

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See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000); Doe v. United States, 58 F.3d 494, 497
(9th Cir. 1995).
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See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1986) (pro se litigants “must follow the same rules
of procedure that govern other litigants”); Carter v. Comm’r of Internal Revenue, 784 F.2d 1006, 1008 (9th
Cir. 1986) (“Although pro se, [plaintiff] is expected to abide by the rules of the court in which he litigates.”).

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a.

Peoples’s Second Amended Complaint must also comply with Federal Rule of

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Civil Procedure 8, which (as noted above) requires a complaint to contain:

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(1)

a short and plain statement of the grounds for the court’s
jurisdiction, unless the court already has jurisdiction and the
claim needs no new jurisdictional support;

(2)

a short and plain statement of the claim showing that the
pleader is entitled to relief; and

(3)

a demand for the relief sought, which 17
may include relief in the
alternative or different types of relief.

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b.

To survive dismissal, a complaint must give each defendant “fair notice of

what the claim is and the grounds upon which it rests.”18 This standard requires inclusion of

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the factual and legal basis for each claim. Thus, Peoples’s amended complaint must

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specifically allege what law, statute, or constitutional provision he claims was violated by the

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conduct he alleges, such that the defendant will be on notice of the factual and legal basis for

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the claims he seeks to assert against it. Each claim should be broken out into a separate

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cause of action that contains all of the essential elements of the claim asserted and states the

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specific relief requested for that claim (For example: “Count One - § 1983 - Fourth

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Amendment Violation”).

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c.

Plaintiff is also cautioned that an amended complaint must be “complete in

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itself without reference to the” previous version of the complaint. See Local Rule 15-1(a).

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Therefore, Plaintiff must carry forward into the new draft any information that he wants to

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continue to plead; the Court cannot and will not simply refer back to a prior pleading for

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other information because an amended complaint supersedes all prior versions as if the prior

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versions never existed, and all allegations and claims not carried forward are deemed

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waived.19 The new pleading must be titled “Second Amended Complaint.”

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Fed. R. Civ. Proc. 8(a).

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Twombly, 550 U.S. at 555 (2007) (citation omitted).

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See Valadez-Lopez v. Chertoff, 656 F.3d 851, 857 (9th Cir. 2011).

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d.

Given this specific guidance on pleading requirements, the Court is not

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inclined to grant Plaintiff leave to file a third amended complaint if the second amended

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complaint is to be found deficient.20

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e.

Plaintiff’s failure to file a properly pled second amended complaint that

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complies with the rules of this Court within 20 days of this order will result in the

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termination of this case without further notice because all of Peoples’s claims have been

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dismissed under Rule 12(b)(6).
Conclusion

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IT IS HEREBY ORDERED that the NLVMPD’s Motion to Dismiss [Doc. 10] is

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GRANTED. If Peoples desires to maintain this action, he must file a Second Amended

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Complaint within the next 20 days that cures the deficiencies identified in this Order.

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Plaintiff’s failure to timely file a proper Second Amended Complaint in full compliance with

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this order and the rules of this Court may result in the dismissal of this case with prejudice.

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DATED: July 17, 2014

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_________________________________
JENNIFER A. DORSEY
UNITED STATES DISTRICT JUDGE

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Clerk to notify:
Lewis Peoples, III
5236 Tiger Cub Court
19 North Las Vegas, NV 89031
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See Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992); Ghazali v. Moran, 46 F.3d 52, 54 (9th
Cir. 1995).