Hodges et al v. Las Vegas Metropolitan Police Department et al
Filing
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ORDER Granting Defendant Douglas Gillespie's 10 Motion to Dismiss. Signed by Judge James C. Mahan on 6/9/2014. (Copies have been distributed pursuant to the NEF - SLD)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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ANTOINE HODGES, et al.,
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2:13-CV-2014 JCM (NJK)
Plaintiff(s),
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v.
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LAS VEGAS METROPOLITAN
POLICE DEPARTMENT, et al.,
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Defendant(s).
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ORDER
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Presently before the court is defendant Douglas Gillespie’s motion to dismiss (doc. # 10).
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Plaintiffs Antoine and Annette Hodges have responded (doc. # 12) and the defendant has replied
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(doc. # 13).
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I.
Background1
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This matter arises out of the shooting of plaintiff Antoine Hodges by defendant Jason Evans
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(“Evans”). Evans is a police officer employed by defendant Las Vegas Metropolitan Police
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Department (“LVMPD”). Defendant Douglas Gillespie (“Gillespie”) is the sheriff. Plaintiff Annette
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Hodges is Antoine’s wife.
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On or about October 21, 2013, Antoine was purchasing gas at a 7-11 convenience store in
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Las Vegas, Nevada. (Compl., doc. # 1, ¶ 13). Evans entered the store with his gun drawn and
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James C. Mahan
U.S. District Judge
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A stay of all discovery is currently in place due to the pending use of force investigation into the incident by
the District Attorney’s Office. As a result, the known facts and circumstances surrounding the events are limited.
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ordered Antoine to raise his hands, allegedly misidentifying him as a homicide suspect. (Id. at 14).
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Antoine raised one hand while simultaneously attempting to place money into his pocket with the
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other. (Id.). Evans shot Antoine in the abdomen, allegedly without warning. (Id. at 16). Antoine
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was not armed. (Id.).
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As Antoine lay on the ground, Evans handcuffed him until the paramedics arrived. (Id. at
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17). Antoine was transported to University Medical Hospital where life-saving surgery was
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performed. (Id. at 18).
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Based on these events, Antoine and Annette assert claims for the following: (1) violation of
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Antoine’s civil rights by Evans pursuant to 42 U.S.C. § 1983; (2) a Monell claim against LVMPD
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and Gillespie; (3) negligence against each defendant; (4) assault and battery against each defendant;
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(5) false arrest and imprisonment against each defendant; and (6) loss of consortium against
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“defendant.”2
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The instant motion is brought on behalf of only defendant Gillespie, seeking to dismiss each
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claim against him under Rule 12.
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II.
Legal Standard
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A court may dismiss a plaintiff's complaint for “failure to state a claim upon which relief can
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be granted.” FED. R. CIV. P. 12(b)(6). A properly pled complaint must provide “[a] short and plain
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statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2); Bell
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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require detailed factual
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allegations, it demands “more than labels and conclusions” or a “formulaic recitation of the elements
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of a cause of action.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citation omitted). “Factual
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allegations must be enough to rise above the speculative level.” Twombly, 550 U.S. at 555. Thus,
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to survive a motion to dismiss, a complaint must contain sufficient factual matter to “state a claim
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to relief that is plausible on its face.” Iqbal, 129 S.Ct. at 1949 (citation omitted).
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In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply when
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considering motions to dismiss. First, the court must accept as true all well-pled factual allegations
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James C. Mahan
U.S. District Judge
This claim does not specify which defendant(s) it is being asserted against.
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in the complaint; however, legal conclusions are not entitled to the assumption of truth. Id. at 1950.
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Mere recitals of the elements of a cause of action, supported only by conclusory statements, do not
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suffice. Id. at 1949. Second, the court must consider whether the factual allegations in the complaint
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allege a plausible claim for relief. Id. at 1950. A claim is facially plausible when the plaintiff's
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complaint alleges facts that allows the court to draw a reasonable inference that the defendant is
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liable for the alleged misconduct. Id. at 1949.
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Where the complaint does not permit the court to infer more than the mere possibility of
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misconduct, the complaint has “alleged – but not shown – that the pleader is entitled to relief.” Id.
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(internal quotations omitted). When the allegations in a complaint have not crossed the line from
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conceivable to plausible, plaintiff's claim must be dismissed. Twombly, 550 U.S. at 570.
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III.
Discussion
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A.
Monell claim
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Although it is titled as “42 U.S.C. § 1983 – Monell claim,” in an abundance of caution the
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court will treat the second cause of action as alleged against Gillespie as one seeking to hold him
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personally liable under Section 1983.3
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Individual capacity
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Title 42 U.S.C. § 1983 provides a cause of action for the “deprivation of any rights,
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privileges, or immunities secured by the Constitution and laws” of the United States. “To state a
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claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the
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Constitution or laws of the United States was violated, and (2) that the alleged violation was
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committed by a person acting under the color of State law.” Long v. Cnty. of Los Angeles, 442 F.3d
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1178, 1185 (9th Cir. 2006).
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For a defendant to be held liable under § 1983, the plaintiff must demonstrate that the
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defendant personally participated in the alleged denial of rights; in other words, there can be no
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liability under § 1983 based on respondeat superior or other theory of vicarious liability. Monell v.
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James C. Mahan
U.S. District Judge
A “Monell” claim ordinarily seeks to hold a municipality liable for an unconstitutional act by one of its
officers. Gillespie is not a municipality, therefore his inclusion in the second cause of action makes sense only if it seeks
to hold him liable based upon some level of personal involvement in the incident.
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Dep't of Soc. Services of City of New York, 436 U.S. 658, 663 n.7 (1978); see also Jones v. Williams,
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297 F.3d 930, 934 (9th Cir. 2002). Liability under §1983 attaches only upon personal participation
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by a defendant in the constitutional violation. Taylor v. List, 880 F.3d 1040, 1045 (9th Cir. 1989).
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A supervisor may be liable for constitutional violations of subordinates, however, if the supervisor
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participated in, directed, or knew of the violations and failed to act to prevent them. Id.
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Here, the complaint does not assert that Gillespie personally participated in the alleged
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constitutional deprivation(s). The complaint likewise does not contain any facts suggesting that
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Gillespie directed or knew of the alleged violations of Antoine’s rights and failed to act to prevent
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them. Accordingly, any effort to hold Gillespie liable in his individual capacity would necessarily
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be based upon a theory of respondeat superior, and the individual claim against him therefore fails.
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Monell, 436 U.S. at 663 n.7.4
ii.
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Official capacity
Claims against an individual in his official capacity are the functional equivalent of a suit
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against the entity of which he is an agent. Kentucky v. Graham, 473 U.S. 159 (1985). Thus, the
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official capacity claims against Gillespie are duplicative of those against LVMPD and are hereby
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dismissed as redundant. See Center for Bio-Ethical Reform, Inc. v. Los Angeles Cnty Sheriff Dept.,
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533 F.3d 780, 799 (9th Cir. 2008) (Sheriff sued in “official capacity” is a redundant defendant and
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should be dismissed when county is also named).
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B.
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The third, fourth, fifth, and sixth causes of action are those for various state torts. Each claim
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State law claims
as alleged against Gillespie fails.
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Nevada law immunizes certain officers and employees of political subdivisions for the acts
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or omissions of other persons. In particular, “[n]o actions may be brought against (a) a sheriff or
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county assessor which is based solely upon any act or omission of a deputy; (b) a chief of a police
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James C. Mahan
U.S. District Judge
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The allegations do not point to any particular policy that Gillespie himself has implemented. The complaint
merely contains a laundry list of policies and/or customs allegedly held by LVMPD–many of them seemingly irrelevant
to these facts–without describing Gillespie’s involvement, if any, in any of them. As a result, the complaint contains only
conclusory allegations and threadbare recitals of the type that are not permitted by Iqbal and Twombly.
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department which is based solely upon any act or omission of an officer of the department. . .” NRS
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41.0335(1)(a)-(b). Plaintiffs’ claims for assault, battery, false arrest, false imprisonment, and loss
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of consortium seek to hold Gillespie liable for Evans’ alleged acts, and are therefore bared by
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Nevada law.
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To the extent the complaint also seeks to hold Gillespie liable under a theory of negligent
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hiring, training, supervision, or retention, Gillespie enjoys immunity from such a claim under
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Nevada’s discretionary immunity statute. See NRS 41.032(2); see also Beckwith v. Pool, 2013 WL
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3049070 at *6-7 (D. Nev. Jun. 17, 2013).
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In addition, plaintiffs have failed to address any of these claims in their opposition to the
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motion to dismiss. (See generally doc. # 12). The local rules therefore provide an additional ground
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upon which to grant defendant’s motion with respect to the state law claims asserted against him.
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See LR 7-2(d) (“The failure of an opposing party to file points and authorities in response to any
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motion shall constitute a consent to the granting of the motion.”); see also Ghazali v. Moran, 46 F.3d
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52, 53 (9th Cir. 1995) (court may grant dismissal when a motion to dismiss is unopposed after
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evaluating several enumerated factors).
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IV.
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Conclusion
The complaint fails to state a claim for which relief can be granted against this defendant.
Defendant Gillespie’s motion to dismiss is granted.
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Accordingly,
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IT IS HEREBY ORDERED, ADJUDGED, and DECREED that defendant Douglas
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Gillespie’s motion to dismiss (doc. # 10) be, and the same hereby is, GRANTED.
DATED June 9, 2014.
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UNITED STATES DISTRICT JUDGE
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James C. Mahan
U.S. District Judge
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