Arevalo v. Las Vegas Metropolitan Police Department

Filing 26

ORDER Granting 6 Motion for Partial Dismissal of Claims. It Is Further Ordered that Plaintiff Shall File an Amended Complaint by 7/17/2015. Signed by Judge Jennifer A. Dorsey on 6/30/2015. (Copies have been distributed pursuant to the NEF - DC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JESUS AREVALO, an Individual,

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v.

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LAS VEGAS METROPOLITAN POLICE
DEPARTMENT,

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Case No.: 2:14-cv-01837-JAD-CWH

Defendant.

Plaintiff,
Order Granting Defendant’s Motion to
Dismiss Second Claim for Relief with
Leave to Amend
[#6]

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Jesus Arevalo claims that the Las Vegas Metropolitan Police Department (Metro) fired him

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because he is Hispanic, and he asserts two Title VII claims against Metro: one entitled

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“discrimination” and a second entitled “wrongful termination.”1 Metro moves to dismiss Arevalo’s

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wrongful-termination claim as duplicative of his discrimination claim.2 Arevalo responds that he

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intended to assert different theories of liability like NRS Chapter 289 and a union contract as the

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foundation for his wrongful-termination claim, making it legally distinct from his Title VII racial-

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discrimination claim, and he asks for leave to amend if this intention is not clear from his pro se

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pleading. As pled, Arevalo’s wrongful-termination claim is entirely duplicative of his racial-

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discrimination claim, and I grant Metro’s motion to dismiss it. Arevalo has until July 17, 2015, to

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file an amended complaint that replaces his current second claim for relief with one based on a

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distinct, viable legal theory.
Discussion

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Arevalo alleges that he was wrongfully terminated from his job as a Metro police officer after

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he fatally shot a suspect in 2011.3 Arevalo breaks his allegations into two claims for relief. In the

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first, he alleges that Metro “discriminated against” him “under State and Federal Discrimination

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Doc. 1 at 5.

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Doc. 6 at 4.

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Doc. 1 at 2–4.
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Law, including but not limited to Title VII and 42 U.S.C. because he is Hispanic.4 In the second, he

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expands the same theory and elaborates that, although he was terminated, a caucasion officer equally

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culpable for the activities on that tragic day was not; and no other non-Hispanic officer has been

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terminated for an on-duty shooting.5 Metro moves to dismiss plaintiff’s second claim as duplicative

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of the first because both assert a Title VII racial-discrimination claim.

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A.

Arevalo’s second claim is dismissed as duplicative of his first claim.
It is well established that district courts have the power to dismiss duplicative claims.6

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Although Arevalo’s second claim has a different subheading (“wrongful termination”) than his first

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claim (“discrimination”), at their core both are framed as Title VII racial-discrimination claims.

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Arevalo only needs one Title VII racial-discrimination claim in this case. Accordingly, I grant

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Metro’s motion and dismiss Arevalo’s wrongful-termination claim without prejudice.

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B.

Arevalo may amend his wrongful-termination claim if he can identify a different legal
basis for it.

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Arevalo suggests in his opposition that his intention was really to use his wrongful-

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termination claim to allege a different legal theory, such as a violation of Nevada state law or his

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union contract.7 He asks for leave to amend should the court find he has not sufficiently pled these

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theories.

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At this point, Arevalo’s complaint alleges only one legal theory: Title VII. It does not state a

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plausible claim based on a violation of state law or contract. The Ninth Circuit has repeatedly held

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that “a district court should grant the plaintiff leave to amend if the complaint can possibly be cured

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by additional factual allegations.”8 Out of an abundance of caution and in the interest of fairness, I

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grant Arevalo until July 17, 2015, to file an amended complaint if he can cure the deficiencies in his

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Id. at ¶¶ 25–26.

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Id. at ¶¶ 30, 32.

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M.M. v. Lafayette School Dist., 681 F.3d 1082, 1091 (9th Cir. 2012).

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Doc. 11 at 3.

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OSU Student Alliance v. Ray, 699 F.3d 1053, 1079 (9th Cir. 2012).
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wrongful-termination claim. In the event that Arevalo chooses to file an amended complaint to

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better plead a distinct wrongful-termination claim, he is advised of the following:

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1.

His new complaint should be entitled “First Amended Complaint” and must comply

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with the Federal Rules of Civil Procedure and the Local Rules of this court, available on the court’s

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website at http://www.nvd.uscourts.gov/.

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2.

He must include the factual and legal basis for each claim. This means that he must

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

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conduct he alleges. Each claim should be broken down into a separate cause of action that contains

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all essential elements of the claim asserted and states the specific relief requested for that claim.

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3.

An amended complaint must be “complete in itself without reference to the” previous

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version of the complaint. See Local Rule 15-1(a). The court cannot and will not simply refer back to

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a prior pleading for other information; all allegations and claims that are not carried forward are

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deemed waived.9 Therefore, Arevalo must carry forward (or restate) in the new version any

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information that he wants to continue to plead and that has not been specifically dismissed by this

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order.

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Conclusion

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IT IS HEREBY ORDERED that the Las Vegas Metropolitan Police Department’s Motion for

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Partial Dismissal [Doc. 6] is GRANTED; plaintiff’s second claim for relief (wrongful termination)

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is dismissed with leave to amend.

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Should plaintiff desire to replead a wrongful-termination claim against Metro under a theory

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other than Title VII racial discrimination, IT IS FURTHER ORDERED that he must file that First

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Amended Complaint by July 17, 2015. If plaintiff does not file an amended complaint by this

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...

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See Valadez-Lopez v. Chertoff, 656 F.3d 851, 857 (9th Cir. 2011).
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deadline, this case will proceed on his first claim (discrimination) only, and his wrongful-termination

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claim may be dismissed with prejudice.

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DATED June 30, 2015

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______________________________________
____________________
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Jennifer A. Dorsey
Dors
Dorse
Dorsey
s
United States District Judge

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