Harris v. City of Henderson et al

Filing 50

ORDER Granting 39 Motion to Dismiss Complaint. FURTHER ORDERED that Plaintiff shall file his second amended complaint by 7/5/2016. Signed by Chief Judge Gloria M. Navarro on 6/20/16. (Copies have been distributed pursuant to the NEF - JM)

1

UNITED STATES DISTRICT COURT

2

DISTRICT OF NEVADA

3

HARVESTER HARRIS,
4
5
6
7
8
9
10
11
12
13

)
)
Plaintiff,
)
vs.
)
)
CITY OF HENDERSON, a political
)
subdivision of the State of Nevada; LAS
)
VEGAS METROPOLITAN POLICE
)
DEPARTMENT, a political subdivision of the )
State of Nevada; SHERIFF DOUG
)
GILLESPIE, individually; CHIEF PATRICK )
MOERS, individually; OFFICER SCOTT
)
NIELSON, P#4408, individually;
)
DETECTIVE PERDUE, individually; DOE
)
OFFICERS III-X; and JOHN DOES I-X,
)
inclusive,
)
)
Defendants.
)

Case No.: 2:15-cv-00337-GMN-PAL
ORDER

14
15

Pending before the Court is the Motion to Dismiss (ECF No. 39) filed by Defendants

16

City of Henderson (“Henderson”), Chief Patrick Moers (“Chief Moers”), and Detective Perdue

17

(collectively, “Henderson Defendants”). Plaintiff Harvester Harris (“Plaintiff”) filed a

18
19
20
21

Response (ECF No. 40), and Defendants filed a Reply (ECF No. 41).
I.

BACKGROUND
This case arises out of a traffic stop involving Plaintiff and Defendants Officer Scott

Nielson (“Officer Nielson”) and Detective Perdue. Plaintiff was working as a cab driver on

22

March 8, 2013, when “he was stopped by an unmarked SUV with Officer Nielson and

23

Detective Perdue.” (Am. Compl. ¶ 20, ECF No. 28). Plaintiff further alleges that “Officer

24

Nielson and Detective Perdue … identified themselves by badge as police officers.” (Id. ¶ 21).

25

Moreover, Plaintiff alleges that “[b]oth Officer Nielson and Detective Perdue were in plain
Page 1 of 9

1

clothes and not acting as traffic officers,” yelled profanities at Plaintiff, and “Officer Nielson []

2

grabbed [Plaintiff’s] hands and maliciously pulled his finger to inflict pain.” (Id. ¶ 23).

3

Furthermore, Plaintiff alleges that, “[a]s a result of Defendants’ use of force, and choice not to

4

prevent the use of excessive force, Plaintiff has suffered permanent injuries to his right middle

5

finger.” (Id. ¶ 25). Additionally, Plaintiff alleges that he was unreasonably seized by Officer

6

Nielson and Detective Perdue. (Id. ¶ 26).

7

Plaintiff filed the instant action on February 25, 2015. (See Compl., ECF No. 1). On

8

July 31, 2015, the parties filed a Stipulation to Amend Complaint (ECF No. 25), and on August

9

10, 2015, Plaintiff filed his First Amended Complaint (ECF No. 28). Plaintiff’s Amended

10

Complaint alleges the following causes of action: (1) 42 U.S.C. § 1983 violations against

11

Defendant Officer Nielson and Detective Perdue; (2) 42 U.S.C. § 1983 violations against

12

Defendant Gillespie, Defendant Moers and Doe Defendants III-X; (3) Monell claim against

13

LVMPD and Henderson (“Henderson”); (4) false arrest/false imprisonment against all

14

defendants; (5) intentional infliction of emotional distress against all defendants; and (6)

15

negligence against all defendants. (Am. Compl. ¶¶ 28–72).

16

II.

17

LEGAL STANDARD
Dismissal is appropriate under Rule 12(b)(6) where a pleader fails to state a claim upon

18

which relief can be granted. Fed. R. Civ. P. 12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544,

19

555 (2007). A pleading must give fair notice of a legally cognizable claim and the grounds on

20

which it rests, and although a court must take all factual allegations as true, legal conclusions

21

couched as a factual allegation are insufficient. Twombly, 550 U.S. at 555. Accordingly, Rule

22

12(b)(6) requires “more than labels and conclusions, and a formulaic recitation of the elements

23

of a cause of action will not do.” Id.

24
25

“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). “A claim has facial plausibility
Page 2 of 9

1

when the plaintiff pleads factual content that allows the court to draw the reasonable inference

2

that the defendant is liable for the misconduct alleged.” Id. This standard “asks for more than a

3

sheer possibility that a defendant has acted unlawfully.” Id.
“Generally, a district court may not consider any material beyond the pleadings in ruling

4
5

on a Rule 12(b)(6) motion.” Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542,

6

1555 n.19 (9th Cir. 1990). “However, material which is properly submitted as part of the

7

complaint may be considered.” Id. Similarly, “documents whose contents are alleged in a

8

complaint and whose authenticity no party questions, but which are not physically attached to

9

the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss” without

10

converting the motion to dismiss into a motion for summary judgment. Branch v. Tunnell, 14

11

F.3d 449, 454 (9th Cir. 1994). On a motion to dismiss, a court may also take judicial notice of

12

“matters of public record.” Mack v. S. Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986).

13

Otherwise, if a court considers materials outside of the pleadings, the motion to dismiss is

14

converted into a motion for summary judgment. Fed. R. Civ. P. 12(d).

15

If the court grants a motion to dismiss for failure to state a claim, leave to amend should

16

be granted unless it is clear that the deficiencies of the complaint cannot be cured by

17

amendment. DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992). Pursuant

18

to Rule 15(a), the court should “freely” give leave to amend “when justice so requires,” and in

19

the absence of a reason such as “undue delay, bad faith or dilatory motive on the part of the

20

movant, repeated failure to cure deficiencies by amendments previously allowed, undue

21

prejudice to the opposing party by virtue of allowance of the amendment, futility of the

22

amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962).

23

///

24

///

25

///

Page 3 of 9

1

III.

DISCUSSION

2

A. Claims Against Detective Perdue

3

Plaintiff’s claims against Detective Perdue are premised on the allegations that

4

“Detective Perdue failed to intervene in the handcuffing and excessive force used by Officer

5

Nielson.” (Am. Compl. ¶ 29). A police officer has “a duty to intercede when [his] fellow

6

officers violate the constitutional rights of a suspect or other citizen” and will be liable for the

7

deprivation along with his fellow officers if he fails to intercede. Cunningham v. Gates, 229

8

F.3d 1271, 1289–90 (9th Cir. 2000) (citing United States v. Koon, 34 F.3d 1416, 1447 n.25 (9th

9

Cir. 1994)). However, an officer is liable for failing to intercede only if he had a “realistic

10

opportunity” to do so. Id. Here, the allegations related to Detective Perdue’s conduct during

11

Officer Nielson’s alleged use of excessive force and handcuffing are sparse. Based on these

12

sparse allegations, the Court cannot infer that Detective Perdue had a “realistic opportunity” to

13

intercede upon Officer Nielson’s actions and must dismiss Plaintiff’s claims against Detective

14

Perdue. However, these claims are dismissed without prejudice. Because the Court cannot find

15

that amendment would be futile, the Court grants leave to file a second amended complaint that

16

cures the deficiencies identified in this Order.

17

B. Section 1983 Claim Against Chief Moers

18

Plaintiff’s second cause of action alleges a violation of 42 U.S.C. § 1983 against Chief

19

Moers. (Am. Compl. ¶¶ 40–47). Because this claim is premised upon the allegations of

20

Detective Perdue’s failure to intercede, this claim is dismissed. Even still, the Court will

21

further outline other legal deficiencies regarding this claim.

22

“Personal-capacity suits … seek to impose individual liability upon a government officer

23

for actions taken under color of state law. Thus, … ‘to establish personal liability in a § 1983

24

action, it is enough to show that the official, acting under color of state law, caused the

25

deprivation of a federal right.’” Hafer v. Melo, 502 U.S. 21, 25 (citation omitted) (quoting

Page 4 of 9

1

Kentucky v. Graham, 473 U.S. 159, 166 (1985)). However, at bottom, “each [g]overnment

2

official, his or her title notwithstanding, is only liable for his or her own misconduct.” Iqbal,

3

556 U.S. at 677.

4

To adequately plead a local government official’s personal liability, a plaintiff must

5

plead facts from which a court could reasonably infer (1) that the official was personally

6

involved in the alleged constitutional deprivation, or (2) the existence of a sufficient causal

7

connection between the supervisor’s wrongful conduct and the constitutional violation. Hansen

8

v. Black, 885 F.2d 642, 645–46 (9th Cir. 1989). Thus, personal, supervisory liability “exists

9

even without overt personal participation in the offensive act if supervisory officials implement

10

a policy so deficient that the policy itself is a repudiation of constitutional rights and is the

11

moving force of the constitutional violation.” Id. (internal quotation marks omitted).

12

Here, neither party asserts that Chief Moers was personally involved in, or even present

13

during, the alleged incident that resulted in Plaintiff’s injuries. Rather, Plaintiff asserts that he

14

suffered the alleged constitutional violations as a result of a series of policies that all

15

defendants, including Chief Moers, either implemented or ratified. (Am. Compl. ¶ 49).

16

However, Plaintiff’s Complaint lacks any factual allegations specifically linking any of these

17

polices or these actions to Chief Moers. Similarly, the Complaint lacks any allegations of

18

discrete actions taken by Chief Moers that caused the alleged injuries. Accordingly, because

19

Plaintiff has failed to provide anything beyond insufficient conclusory allegations, the Court

20

must dismiss this claim against Chief Moers in his personal capacity. See Iqbal, 556 U.S. at 678

21

(citing Twombly, 550 U.S. at 555) (holding that a formulaic recitation of a cause of action with

22

conclusory allegations is not sufficient; a plaintiff must plead facts showing that a violation is

23

plausible, not just possible); see also Suever v. Connell, 579 F.3d 1047, 1061–62 (9th Cir.

24

2009) (affirming the district court's dismissal of a § 1983 complaint for failing to “differentiate

25

at all among the four named defendants” and failing “to tie any particular harm that any

Page 5 of 9

1

particular plaintiff allegedly suffered to any discrete action taken by [the government

2

official]”).
For these reasons, the Court grants Defendants’ Motion to Dismiss as to Plaintiff’s §

3
4

1983 claim against Chief Moers. However, this cause of action is dismissed without prejudice.

5

Because the Court cannot find that amendment would be futile, the Court grants leave to file a

6

second amended complaint that cures the deficiencies identified in this Order.

7

B. State Law Claims Against Gillespie

8

Plaintiff’s fourth, fifth, and sixth causes of action are those for various state torts. (Am.

9

Compl. ¶¶ 57–72). Each claim as alleged against Chief Moers fails.

10

Nevada law immunizes certain officers and employees of political subdivisions for the

11

acts or omissions of other persons. In particular, “[n]o actions may be brought against (a) a

12

sheriff or county assessor which is based solely upon any act or omission of a deputy; (b) a

13

chief of a police department which is based solely upon any act or omission of an officer of the

14

department ...” NRS 41.0335(1)(a)–(b). Plaintiff’s claims for false arrest, false imprisonment,

15

and intentional infliction of emotional distress seek to hold Chief Moers liable for Officer

16

Nielson and Detective Perdue’s alleged acts, and are therefore barred by Nevada law.

17

Plaintiff’s sixth claim seeks to hold Chief Moers liable under a theory of negligent

18

hiring, training, supervision, or retention. However, Chief Moers enjoys immunity from such a

19

claim under Nevada’s discretionary immunity statute. See NRS 41.032(2); see also Beckwith v.

20

Pool, 2013 WL 3049070 at *6–7 (D. Nev. Jun. 17, 2013). Accordingly, the state law claims

21

against Chief Moers are dismissed without prejudice. Because the Court cannot find that

22

amendment would be futile, the Court grants leave to file a second amended complaint that

23

cures the deficiencies identified in this Order.

24

///

25

///

Page 6 of 9

1

C. Monell Claim Against LVMPD

2

Plaintiff’s third cause of action alleges Monell claims against Henderson. (Am. Compl.

3

¶¶ 48–56). Pursuant to Monell, municipalities can be sued directly under § 1983 for violations

4

of constitutional rights. See Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 690

5

(1978). To bring a claim for the deprivation of a constitutional right by a local governmental

6

entity, Plaintiff “must establish: (1) that he possessed a constitutional right of which he was

7

deprived; (2) that the municipality had a policy; (3) that this policy ‘amounts to deliberate

8

indifference’ to the [P]laintiff’s constitutional right; and (4) that the policy is the ‘moving force

9

behind the constitutional violation.’” Oviatt By & Through Waugh v. Pearce, 954 F.2d 1470,

10
11

1474 (9th Cir. 1992) (citing City of Canton, Ohio v. Harris, 489 U.S. 378, 389–91 (1989)).
In his Complaint, Plaintiff alleges that Officer Nielson and Detective Perdue’s conduct

12

was pursuant to various customs, policies, practices, and/or procedures of Henderson, which

13

directed, encouraged, allowed, and/or ratified as follows: (1) to arrest and or detain individuals

14

for traffic violations by handcuffing citizens and the use of pain compliance techniques on

15

traffic stops; (2) to fail to use appropriate and generally accepted law enforcement procedures

16

by undercover officers; (3) to fail to use appropriate and generally accepted law enforcement

17

procedures in requiring use of force reports to be used where an injury occurs; (4) to cover-up

18

violations of constitutional rights; (5) to allow, tolerate, and/or encourage a “code of silence”

19

among law enforcement officers and police department personnel; and (6) to tolerate poorly

20

performing officers and failing to adequately discipline those officers for misconduct. (Am.

21

Compl. ¶ 49). Moreover, Plaintiff alleges that Henderson “maintained de facto policies, and

22

organizational customs and cultures to handcuff and use painful holds on citizens in traffic

23

stops and to give ‘street justice’ to individuals whom … Henderson officers believed had

24

disrespected their authority.” (Id. ¶ 50). Furthermore, Plaintiff alleges that “[t]he

25

aforementioned customs, policies, practices, and procedures, were the moving force and/or a

Page 7 of 9

1

proximate cause of the deprivations of Plaintiff’s clearly-established and well-settled

2

constitutional rights in violation of 42 U.S.C. § 1983.” (Id. ¶ 54).

3

However, this claim is premised upon the allegations of Detective Perdue’s failure to

4

intercede. Accordingly, this claim is dismissed without prejudice. Because the Court cannot

5

find that amendment would be futile, the Court grants leave to file a second amended complaint

6

that cures the deficiencies identified in this Order.

7

D. State Law Claims Against LVMPD

8

Plaintiff’s fourth and fifth claims against Henderson do not contain any allegations as to

9
10

Henderson. (Am. Compl. ¶¶ 57–65). Rather, the allegations solely relate to Officer Nielson
and Detective Perdue. Accordingly, the Court dismisses these two claims against Henderson.
Plaintiff’s sixth claim seeks to hold Henderson liable under a theory of negligent hiring,

11
12

training, supervision, or retention. (Am. Compl. ¶¶ 66–72). However, Henderson enjoys

13

immunity from such a claim under Nevada’s discretionary immunity statute. See NRS

14

41.032(2); see also Beckwith v. Pool, 2013 WL 3049070 at *6–7 (D. Nev. Jun. 17, 2013).

15

Accordingly, the state law claims against Henderson are dismissed without prejudice. Because

16

the Court cannot find that amendment would be futile, the Court grants leave to file a second

17

amended complaint that cures the deficiencies identified in this Order.

18

IV.

CONCLUSION

19

IT IS HEREBY ORDERED that the Henderson Defendants’ Motion to Dismiss (ECF

20

No. 39) is GRANTED. Accordingly, Plaintiff’s claims against the Henderson Defendants are

21

dismissed without prejudice.

22

IT IS FURTHER ORDERED that Plaintiff is granted leave to file a second amended

23

complaint to cure the deficiencies identified in this Order. Accordingly, Plaintiff shall file his

24

second amended complaint by July 5, 2016. Failure to file a second amended complaint by

25

Page 8 of 9

1

this date shall result in the Court dismissing Plaintiff’s claims against the Henderson

2

Defendants with prejudice.

3

20
DATED this _____ day of June, 2016.

4
5
6

___________________________________
Gloria M. Navarro, Chief Judge
United States District Judge

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

Page 9 of 9